Posts Tagged ‘living wills’

Online Video Gives Advice On How to Write Your Living Will

MARCH 1 , 2010  VOLUME 17, NUMBER 7

Everyone should sign a living will and (perhaps more importantly) a health care power of attorney. You knew that already, right? But how should one go about preparing a living will?

The answer is deceptively simple. Forms are widely available online, from health care providers and from aging advocacy organizations (to name just a few places). One of the best in Arizona (because it is well-formatted and easy to get to) is offered by the Arizona Attorney General’s office. Those forms are generally fine, though obviously neither comprehensive nor customized. Your lawyer can (and probably will) prepare a more extensive and personalized document as part of your estate plan — your will and (if you create one) your living trust.

Be aware of state variations. Your state may refer to the health care power of attorney as a health care “proxy,” or call your agent a “patient advocate.” You will want to make sure any forms you use are appropriate for your state — that may not require the involvement of a lawyer, but your estate planning lawyer will be able to address the same questions while preparing your estate plan.

Most people will want to sign both a living will and a health care power of attorney, though the common practice in many states (including Arizona) is to incorporate both into a single document. Depending on your state there may even be other kinds of “advance directives” to consider — like a mental health power of attorney, or an authorization for autopsy, organ donation and/or cremation (Arizona permits all of those additional directives).

More important than the particular advance directive you sign, however, is the information you provide to family members. That’s the point of a new online video offered (in two parts) by retired University of Arizona law professor Kenney HeglandPart 2 stands alone, but the two segments really work better together. Incidentally, Prof. Hegland (along with Fleming & Curti partner Robert Fleming) is the author of New Times, New Challenges: Law and Advice for Savvy Seniors and Their Families, and his advice is practical as well as legal.

Your advance directives are most useful if they are highly personalized. Clear directions and full information will increase the likelihood that your wishes are carried out, and provide your family with both comfort and direction.

Professor Hegland’s two-part video is at once entertaining and useful. He suggests that you write out your thoughts on end-of-life care, and provide your loved ones with explanations along with your actual instructions. You can also address related issues — what you want your obituary to highlight, who should speak at your funeral services, and more.

There are a handful of useful video resources available online addressing living wills and advance directives. Oddly, few of them offer practical advice about writing or signing the documents themselves. Most are promotional pieces by attorneys or online legal forums, describing the meaning and perhaps the importance of the documents. Three notable exceptions you might look at if you like Prof. Hegland’s submission: (1) a touching description, complete with family interviews, of the care forced upon Robert Wendland and his family when he was critically injured without having signed an advance directive — in two parts, (2) the cute but not terribly informative class project of a student named Maha, performed with a CPR dummy, and (3) the Arizona Attorney General’s dramatization about life care planning, including living wills and advance directives (to play this video, go to the AG’s “life care planning” page and click on the video link under “Life Care Planning For Everyone”).

What Have We Learned From The Tragedy of Terri Schiavo?

APRIL 4, 2005  VOLUME 12, NUMBER 40

By most reports Terri Schiavo was a shy and quiet woman, and she might well have been distressed if she had anticipated that the process of her dying would become such a public spectacle. Much has been written about her, her family, her wishes, her condition, and the political and religious factions aligned on one side or the other. In fact, too much has been written already—but we are compelled to seek some greater meaning for the public in her very private tragedy.

Regardless of individual reactions to the long death of Terri Schiavo, there are practical lessons for consideration. First among those, of course, is the importance of executing medical directives while still able to do so.

Every adult, regardless of age, should designate an individual (and one or more alternates) to make medical decisions in the event of incapacity. Whether the document is called a health care power of attorney, a health proxy designation or something else, it is important to designate a surrogate. Do not put it off because you do not think you are at risk. Terri Schiavo was 27 when she collapsed suddenly. Nancy Beth Cruzan was 25 when an auto accident left her brain-injured and catapulted her case into national headlines in the mid-1980s. A decade earlier, 21-year-old Karen Ann Quinlan’s injuries from a night of mixing alcohol and valium first focused public attention on legal, ethical and moral issues surrounding the end of life.

In addition to nomination of a surrogate to make personal and medical decisions, most individuals should also sign a statement indicating their wishes. The unfortunately-named “living will” can express a wish not to be treated in some circumstances, or to receive full treatment in any event, or any other variation imaginable. Under Arizona law, any statement describing your wishes can qualify as a living will—write it, sign it and have it witnessed (usually by two people) and you have made a significant contribution to your own peace of mind.

Arizona law provides a form for health care powers of attorney and living wills, but permits other options. Lawyers usually prepare the documents in connection with general estate planning, but a lawyer is not required. Forms are available from hospitals, area agencies on aging, and advocacy groups. A number of perfectly acceptable variations can be found online, including those at the Arizona Attorney General’s website.

Another option: the National Right to Life’s “Will to Live” directs provision of medical care under nearly all circumstances. It also expresses the view that tube feedings are not medical care, and should be continued in most circumstances.

Arizona law also recognizes advance directives authorizing mental health treatment, and directing withholding of CPR and resuscitative efforts. Those forms are not as important for most people but can be essential in some cases. For more information about the options in Arizona (including both mental health powers and the “orange form” governing out-of-hospital resuscitation) check into our Question and Answer section on advance directives.

Whatever documents you do sign, it is also important to circulate them widely. Encourage discussion of your wishes while you are still able to participate and you will increase the likelihood that those wishes will be honored.

CPR Efforts May Have Violated Nursing Home Rights Law

DECEMBER 22, 2003 VOLUME 11, NUMBER 25

Many of our clients have a visceral reaction to the idea that they might be “kept alive by machines” after they are no longer able to make health care decisions for themselves. That is why they sign “advance directives” like health care powers of attorney and living wills. The whole point of such documents is to convey the patient’s wishes about the type of treatment to be provided—or withheld.

Doris Lee had signed an advance directive before she was admitted to Riverview Care Center. The Louisiana woman had been very specific about what care she wanted. Her advance directive said, in part: “Do not use a respirator. Do not use dialysis. Do not use feeding tube. Do not use CPR.”

Late one night, aides at Riverview found Ms. Lee unresponsive and decided they needed help to revive her. They called 911, and emergency medical technicians responded. They did exactly what they are trained to do—they began CPR (cardiopulmonary resuscitation), administered chest compressions, placed a breathing tube and even a tube to deliver fluids. When Ms. Lee’s daughter arrived and demanded that the treatment be stopped, Ms. Lee was allowed to die without further intervention.

Ms. Lee’s daughters sued the nursing home for violating the instructions contained in Ms. Lee’s advance directives. The nursing home sought dismissal of the lawsuit, arguing that the question first had to be submitted to a medical review panel by state law.

The Louisiana Court of Appeals disagreed and ordered that the case proceed to trial. Ms. Lee’s daughters were not claiming medical malpractice, ruled the Court, but breach of contract and a violation of the Nursing Home Residents Bill of Rights. Terry v. Red River Center Corporation, December 10, 2003.

The significance of Ms. Lee’s case is subtle, but important. If her daughters’ claim was really a malpractice action, it would be judged by comparing the nursing home’s behavior to the prevailing standard of care among similar facilities. It would also be subject to special state procedural rules (similar to those adopted in Arizona) designed to make it harder for patients to successfully sue for malpractice.

If, however, the claim is based on contract principles or the rights contained in the Nursing Home Residents Bill of Rights, the questions become much simpler. Did the facility have a duty to follow Ms. Lee’s instructions? Did they know what those instructions were? And, finally, did they fail to honor her advance directives? Those are the questions to be posed at trial.

Feeding Tube Withdrawn From Patient With No Living Will

MAY 27, 2002 VOLUME 9, NUMBER 48

One way to help assure that you will not receive unwanted medical care is to sign an advance medical directive. Every U.S. state now recognizes health care powers of attorney (sometimes called health care proxies) or living wills. Nearly all states recognize both types of documents. Often, however, the decision whether to initiate or continue life-sustaining medical treatment must be made for patients who have signed no documents at all.

Most states now permit family members to make some—or even all—health care decisions for patients who have not signed advance directives. Sometimes those powers are limited; in Arizona, for instance, family members do not have the inherent power to refuse or remove feeding tubes.

When patients have not signed any kind of advance directive, however, the likelihood increases that an unhappy result will occur. Take the case of Engracia Torregosa Garcia as an example.

Ms. Garcia experienced cardiac arrest in July of last year. Although she was resuscitated she had suffered irreversible brain damage, and she fell into a chronic vegetative state. Doctors agreed that there was no hope of recovery, but Ms. Garcia could be kept alive for months or years on a feeding tube.

Because there was no prospect for improvement Ms. Garcia was transferred to hospice. Her mother, brothers and sisters immediately objected to her care in hospice, though, because the feeding tube was removed. The case ended up in court in Tennessee, where Ms. Garcia was being treated.

Nearly four months after her accident the trial court ruled that Ms. Garcia’s feeding tube could not be removed. State law permits anyone to sign an advance directive authorizing withdrawal or withholding of a feeding tube. The judge reasoned, however, that the same law prohibits removal of a feeding tube from a patient who never got around to signing any directive.

In the course of the proceedings the court had appointed an attorney to represent Ms. Garcia, and her attorney and the hospice program both appealed. The Tennessee Court of Appeals reversed the trial judge’s holding, and authorized the removal of her feeding tube. The evidence was clear, ruled the Court of Appeals, that Ms. Garcia would not have wanted to be kept alive in her current condition; the Tennessee legislature did not have the power to compel her to accept treatment just because she had not signed a particular form in advance. Juan-Torregosa v. Garcia, May 7, 2002.

The result in Ms. Garcia’s case would probably strike most people as correct. As is often the case with stories reported in Elder Law Issues, however, that result was not reached without considerable expense and delay—which could have been avoided with proper planning.

Evidence of Living Will Intent Must Be Clear and Convincing

OCTOBER 15, 2001 VOLUME 9, NUMBER 16

Many patients approaching the end of life feel very strongly that they would not want to be kept alive by feeding tubes, artificial breathing machines or other devices. Signing appropriate advance directives helps, but there is no guarantee that they will be located, properly understood and followed in every case. Discussions with family members, caregivers and medical providers can dramatically increase the likelihood that the patient’s wishes will be carried out.

Consider, for example, the case of Delores Cameron. She had been married for over 40 years to James Cameron, but she had two sons from an earlier marriage. In 1995 she signed a living will, using the form provided by the Alabama Legislature. It directed that “artificially provided nutrition and hydration” should be withheld if she were ever in a persistent vegetative state.

In March of 2000, after a series of strokes, Ms. Cameron became completely unresponsive. She was cared for in an Alabama nursing home, and fed through a feeding tube. Mr. Cameron directed the nursing home to remove the feeding tube.

Ms. Cameron’s sons filed a lawsuit to prevent removal of their mother’s feeding tube. After five days of hearings lasting over two months, the judge ruled that Ms. Cameron’s wishes should be honored, and her sons appealed. They made two arguments that serve as a warning for other patients who execute living wills, durable powers of attorney or other advance directives.

First they argued that Ms. Cameron was not really in a persistent vegetative state. Although one physician testified that she was slightly responsive to some stimulation, two others insisted that she lacked “thought, sensation, purposeful action, social interaction and awareness of self and environment.”

The sons also insisted that it was impossible that their mother really understood the meaning and effect of her living will when she signed it. If she had realized that it would have meant withdrawal of a feeding tube, they argued, she would not have signed the pre-printed form. They did not provide specific evidence of her wishes, but doubted that she had intended to sign the living will.

The Alabama Supreme Court decided that Ms. Cameron’s wishes should be followed—but only if the evidence of those wishes was “clear and convincing.” The trial judge had not used that phrase, so the case was sent back for a further hearing. Knight v. Beverly Health Care, August 31, 2001.

Would it have helped for Ms. Cameron to discuss her wishes with her sons in advance? The financial and emotional cost of legal proceedings might have been avoided if family members had talked over the documents and their meaning before Ms. Cameron’s final illness.

The moral of Ms. Cameron’s story: It is not enough to just sign a directive—family members should be informed and wishes discussed in advance.

Court Refuses Permission For Withdrawal Of Feeding Tube

AUGUST 13, 2001 VOLUME 9, NUMBER 7

Twice before we have told the unfolding and tragic story of Robert Wendland. Fate and the California Supreme Court have now written the final two chapters in the saga.

You may recall that Robert Wendland was injured when his truck rolled over in 1993. Mr. Wendland had been drinking and despondent—at least part of his emotional state would later be attributed to the then-recent death of his father-in-law from a debilitating disease.

After his accident Mr. Wendland’s wife and brother testified that shortly before the accident he had expressed a wish not to suffer a slow, agonizing death like the one he had seen his father-in-law endure. If that was his wish, it was not to be granted.

Although Mr. Wendland was in a coma for a period of time after his accident, he recovered to the point that he could give some responses to questions posed to him by his caretakers. While his treating physician elicited yes/no responses to some simple questions, he gave no response at all to the most chilling of the inquiries: “Do you want to die?” The physician testified that he wasn’t sure that the other answers were really responsive, though they seemed to be consistent.

Mr. Wendland’s wife asked the California District Court for permission to remove the feeding tubes keeping him alive. His mother and sister objected. In an emotional opinion after hearing days of testimony, the judge declined to give her that power. (See the August 10, 1998, Elder Law Issues)

Mrs. Wendland appealed, and the California Court of Appeals sided with her. (See the March 6, 2000, Elder Law Issues) Mr. Wendland’s mother appealed that decision to the state’s Supreme Court.

Last week’s opinion from the California Supreme Court, though chronologically the final word, was really the penultimate chapter. Mr. Wendland died, feeding tube in place, just before the final court decision was announced. That decision reinstated the judgment of the trial court—in the absence of clear and convincing evidence of Mr. Wendland’s wishes, the Supreme Court held, Mrs. Wendland did not have the authority to direct removal of his feeding tube. Conservatorship of the Person of Wendland, August 9, 2001.

Mr. Wendland’s story has limited applicability for many reasons. It is a California court case only, and other state’s courts might reach a different result. More significantly, Mr. Wendland’s condition was unusual: he was not in a coma, not in a vegetative state, but still not able to communicate effectively.

Mr. Wendland lived eight years in personal limbo while courts tried to decide his fate. His death made the final decision both moot and ironic. Though we may never know Mr. Wendland’s true wishes the lesson from his personal and legal history is clear. Failure to sign a living will or other advance directive can, in the real world, lead to unwanted, expensive and ultimately ineffectual treatment.

Developmentally Disabled Man Dies Before Court Decides His Fate

AUGUST 16, 1999 VOLUME 7, NUMBER 7

Though once viewed as slightly out of the mainstream of American thought, the “right-to-die” movement has become widely accepted today. Few would argue with the notion that a competent patient has the right to refuse life-sustaining treatment, even when the medical community collectively believes that the treatment should continue. Just this week, Rochester, New York, resident Bill White ordered that his ventilator be disconnected after 32 years; though officials were initially uncertain how to respond, after a quick legal review Mr. White was permitted to make the decision for himself. He died last Friday.

Mr. White was mentally competent at the time he made his decision. A more difficult question arises where the patient is not currently competent, but left an advance directive (a living will, or a health care power of attorney). Interpreting the directive, and trying to determine what the patient would have wanted in the present circumstance, can present legal, ethical and emotional challenges.

More difficult still is the dilemma posed by the patient who never was competent to express his or her wishes. In the case of a patient who has been developmentally disabled since birth, for example, should the fact of that disability compel a decision to aggressively treat every illness? Is it ever permissible to disconnect life-sustaining treatment from the never-competent patient? If so, how should the decision be made?

These are the questions that faced officials in the case of Matthew Woods. The 54-year-old Kentucky resident had a tested IQ of 71, and had resided in state facilities since age 18. His parents were deceased, and his two closest relatives were a brother and sister; his brother was not closely involved in his care and his sister resided in a Kentucky nursing home.

Mr. Woods was asthmatic, and was on his way to treatment at the University of Kentucky when he suffered a cardiopulmonary arrest in April, 1995. He suffered irreversible brain damage, and was in a permanently unconscious state, residing in another hospital.

Mr. Woods had never been able to tell anyone how he would want to be treated, and family was not available to help make the decision. Did that mean that he must be kept alive as long as possible on a mechanical ventilator?

The Kentucky court considering that question decided that it was permissible to withdraw the ventilator support, and Mr. Woods’ court-appointed guardian ad litem appealed. Ironically, Mr. Woods died (of “natural causes”) while the appeal was pending, but the Kentucky Court of Appeals nonetheless rendered its decision, finding that a guardian has the power to withdraw life-sustaining treatment even in the absence of any indication of the ward/patient’s actual wishes. Woods v. Commonwealth, July 30, 1999. The opinion was later withdrawn when the Kentucky Supreme Court accepted jurisdiction of the appeal. (Editor’s Note: the Kentucky Supreme Court did not rule until August, 2004. See Elder Law Issues for September 13, 2004, for an update.)

Arizona courts would reach the same result. In fact, the Kentucky case relies heavily on the logic of the leading Arizona case on this question, that of Tucsonan Mildred Rasmussen. Ms. Rasmussen was not developmentally disabled, but had never given any indication of her wishes regarding treatment. When she later was diagnosed as being in a persistent vegetative state, her guardian was authorized to withdraw the artificial tube feedings that kept her alive. Just as in the case of Matthew Woods, the final irony was that Mildred Rasmussen died while courts were still considering her legal fate.

Generic Living Will May Not Prevent Life-Sustaining Care

JULY 5, 1999 VOLUME 7, NUMBER 1

In nearly every state, living wills and health care powers of attorney can effectively declare a patient’s wishes regarding medical treatment and authorize an agent to carry out those wishes. In some states, the two kinds of documents may be combined into a single form, and they may be known by different names (“health care proxy” or “statement of wishes regarding health care,” for example). The ability of patients to direct the kind of care they will receive or not receive is seldom at issue. What frequently leads to legal complications, however, is how the directives are to be interpreted, when they become effective, and who must abide by them.

A recent Maryland court case illustrates the kinds of problems encountered in the practical use of advance directives. Robert Lee Wright thought he had taken care of the whole advance directive issue. He had signed a living will in the form set out by Maryland law, and had named his mother as his health care agent. These steps were not taken lightly; Mr. Wright had recently been diagnosed as suffering from AIDS, and his health care was an important and pressing issue at the time.

In July, 1994, Mr. Wright was at Johns Hopkins Hospital for treatment of kidney problems. He expected to undergo a blood transfusion and then return home. Instead, immediately after the blood transfusion he suffered cardiac arrest; within ten minutes of his heart failure, hospital staff had performed CPR. Mr. Wright’s life was saved, but he remained comatose for two days. He had apparently suffered brain damage during the cardiac arrest, and after he awoke from the coma he could only moan and call for his mother. He died ten days after the administration of CPR.

Mr. Wright’s parents brought suit against Johns Hopkins Hospital, alleging that his living will had instructed that he not be treated aggressively, and that hospital staff should have sought her permission (pursuant to the health care power of attorney) before resuscitating him. The trial judge dismissed the complaint, and the parents appealed.

Maryland’s Court of Appeals agreed with the hospital and the lower court. Mrs. Wright testified that both she and her son understood the living will to mean that “in the event it came [his] time to go, [he] did not want any life-sustaining procedures performed on him,” but the Court noted that the forms he signed did not make such a broad statement.

Mr. Wright’s living will and health care power of attorney, provided by Maryland law as a form for easy use, required that two physicians certify that he was in a terminal condition and that his death was imminent. Since no doctors had yet certified Mr. Wright as terminally ill, his directives were not yet effective at the time he underwent the blood transfusion in the hospital.

Does an individual have a legal cause of action when the hospital (or physician) provides care in violation of the individual’s advance directive? Yes, the court ruled, there is such a cause of action. Because Mr. Wright relied on the formulaic directives provided by the statute, however, Mrs. Wright could not show that the hospital had acted incorrectly. Wright v. Johns Hopkins Hospital, April 20, 1999.

Arizona law also provides a form advance directive for the patient’s convenience. That form does not require physicians to certify that the patient is terminally ill, though a “terminal condition” is mentioned in more than one place. Nothing in Arizona law, however, limits the applicability of living wills or health care powers of attorney to terminal conditions. Just as in Maryland, a patient could make a broader statement of his or her wishes. As in all legal matters, it is important to carefully read the form and make sure it properly expresses your wishes.

Illinois Woman’s Death Does Not Give Rise To Family Claim

MARCH 17, 1997 VOLUME 4, NUMBER 37

Dorothy Ficke was admitted to an Evangelical Health Systems hospital in Illinois in March, 1993. Ms. Ficke was 81 years old and suffered from a recent stroke, and diabetes, arthritis, gout, hypertension, congestive heart failure, respiratory disease and depression.

Ms. Ficke had never signed a Living Will or Health Care Power of Attorney, but her hospital chart was marked Do Not Resuscitate by her physician, Dr. Jose Aruguete, a little more than a week after her admission. Ms. Ficke died soon after.

Claiming that they had not been told about Illinois’ law permitting surrogates to make health care decisions, and that they had been forced to stand by while Dr. Aruguete continued to aggressively treat their mother, Mrs. Ficke’s children Darlene, Thomas and Michael brought suit against Dr. Aruguete and the hospital. Their claim against the hospital asserted that hospital staffers knew that Ms. Ficke lacked capacity and that the hospital took no steps to determine whether family members could make health care decisions for her; they also argued that the hospital failed to tell them they had the power to make decisions regarding her care.

The Illinois trial court judge dismissed the Ficke children’s suit against the hospital, and they appealed. The Illinois Court of Appeals has now agreed that the children have no lawsuit against the hospital.

Illinois’ law is similar to Arizona’s surrogate decision-making law. It provides that, where a patient is terminally ill, permanently unconscious, or suffering from an incurable or irreversible illness, family members may make decisions regarding health care even if the patient has not signed an advance directive. [Ed. note: Arizona law permits the family member to make any decision except a decision to withhold or withdraw food or fluids]

The Court of Appeals decided that any fault in Ms. Ficke’s case could not be assigned to the hospital. Although the hospital has a duty to determine whether surrogates are available to act, it must do so only after the terminal condition, permanent unconsciousness or incurable or irreversible condition has been certified. “[I]t is for the attending physician, not the hospital or its staff,” said the Court, “to determine whether the Act applies to a particular patient.” In other words, any claim the family may have must be against Dr. Aruguete.

Furthermore, the Court found that family members do not have a cause of action for their own suffering from having to watch the treatment and, ultimately, the death of their mother. While their mother’s estate might have a claim against Dr. Aruguete, the law does not provide protection for family members; to do so, said the Court, would leave open the question of whether only close family members might make claims, or only those family members who truly “cared about” the decedent.

Although not a model of linguistic clarity, the Court acknowledged that “the death of a parent is indeed an event occasioned by the continued suffering or grieving of the decedent’s family.” Suffering and grieving, however, do not give rise to a legal claim. One member of the three-judge court disagreed with the majority, arguing that the family members should have a cause of action against the hospital because the facility knew (or should have known) that Ms. Ficke was in fact covered by the surrogate law, whether or not her physician filled out the requisite form certifying her condition. Ficke v. Evangelical Health Systems, Illinois Court of Appeals, December 13, 1996.

Although Arizona law is similar in some respects, it is not clear whether the same result would be reached in similar facts. Absent special circumstances, facilities are well-advised to consider the wishes of family members regarding cessation of life-sustaining treatment.

Tucson Woman, Fed By Tubes, Kept Alive Despite Living Will

DECEMBER 16, 1996 VOLUME 4, NUMBER 24

“W.L.”, an 85-year-old Tucson woman, lives in her daughter’s home. She has been unable to speak coherently, or to communicate her wishes, since a massive stroke over two years ago.

Less than a year before her stroke, W.L. signed a Living Will (and a Health Care Proxy) in another state. Her Living Will provides that:

If the situation should arise in which I should have an incurable or irreversible condition that is likely to cause my death within a relatively short time, or if I should be permanently unconscious or in a permanent vegetative state, I direct that I be allowed to die and not be subjected to or continue to be kept alive by medication, medial procedures interventions or artificial means of any kind, including artificial nutrition and hydration.

Since shortly after her stroke, W.L. has received both nutrition and hydration through a gastrointestinal tube, which is permanently inserted directly into her stomach. She is mobile and in excellent health; the care she receives in her daughter’s home is exceptional and her health care professionals agree that she can be maintained in her current circumstance for a considerable time.

Last year, in connection with unrelated court proceedings, an attorney was appointed to represent W.L.’s interests. Her attorney questioned whether W.L. should be receiving artificial feedings, given the language of her Living Will. He brought a new court proceeding, asking the judge to authorize the removal of the tube.

W.L.’s medical providers objected, indicating that because of her excellent care, the quality of her life and the slight inconvenience associated with her gastrointestinal tube, it would be wrong to remove the tube at this point. Her family concurred, arguing forcefully that they felt that her quality of life is excellent and that she knows and is interested in family members. Family members also noted that W.L. had suffered another stroke seven years earlier, and had accepted tube feedings and substantially recovered from the first stroke; they argued that administration of tube feedings was consistent with W.L.’s previous practice.

After legal arguments, Pima County Superior Court Judge William Sherrill ruled that W.L.’s feeding tube should not be removed. He noted that there is some ambiguity in W.L.’s Living Will (it indicates that her agent under the Health Care Proxy may have the final decision as to withholding life-sustaining treatment), that there are questions about her understanding of the terms of the Living Will when she signed it, and that her present condition may not be one which would “cause her death.” Finally, according to Judge Sherrill, no decision to remove a feeding tube (particularly over the objections of both family and treatment team) should be made unless the evidence of the patient’s wishes is “clear and convincing.”

Assuming that a patient wishes to avoid W.L.’s current situation, what might she do? Two items would help ensure that strongly-held opinions are honored:

  • Clear expressions of the patient’s wishes. W.L. relied on pre-printed forms (although they were filled out by her attorney and executed in his office). Unfortunately, they did not speak in her own voice, and did not tell the reader which issues were more important to her.
  • Full discussion with family. At least some of W.L.’s family was surprised to learn of her Living Will, and first saw it after the decision to place the feeding tube had been made. If they had been aware of her wishes earlier, they might have acted differently.

Of course, Judge Sherrill’s decision might well have been exactly what W.L. wanted. Unfortunately, her ambiguous Living Will prevents us from ever knowing for certain.

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