Posts Tagged ‘Robert Wendland’

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”).

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.

Appellate Court Ruling May Allow Feeding Tube Removal

MARCH 6, 2000 VOLUME 7, NUMBER 36

Just over eighteen months ago Elder Law Issues reported on the tragic story of Robert Wendland (“Lack of Advance Directives Contributes to Family Tragedy,” August 10, 1998). Last week the California Court of Appeals added a new chapter to the Wendland story, and may have completely changed the ending.

Mr. Wendland was injured in a 1993 automobile accident. Because of brain damage from the accident he has been completely dependent on others for his care; since the accident he has received food and fluids through a feeding tube.

Mr. Wendland has been married to his wife Rose for over twenty years, and they have three children. In late 1995, Mrs. Wendland asked the court to appoint her as conservator of her husband’s person (California’s term for a guardian), and it was apparent she would be appointed. At the same time she asked the court for permission to disconnect Mr. Wendland’s feeding tube.

About the same time, Mr. Wendland’s mother Florence received an anonymous telephone call informing her that a move was underway to remove her son’s feeding tube. She and her daughter (Mr. Wendland’s sister) filed an objection with the court.

Despite some improvement in his condition, Mr. Wendland remains a total-care patient. He is paralyzed on one side and he can not feed himself or control his bladder or bowels.

Mr. Wendland has been fed by artificial means since his accident—at first by a “jejunostomy” tube stapled directly into the inside of the small intestine. Such a tube requires general anesthesia, and Mr. Wendland’s tube became dislodged three times in the first half of 1995. When his wife refused to consent to the fourth replacement of the tube, doctors insisted on a nasogastric feeding tube (inserted through the nose and directly into the stomach). For nearly five years, he has been fed by a “PEG” tube inserted directly into the wall of his stomach and small intestine. It is that tube that Mrs. Wendland now seeks to remove.

Mr. Wendland never signed any “living will,” health care power of attorney or other advance medical directive. Mrs. Wendland testified that he did say he “would never want to live like that” after watching his father die three months before his own accident. That testimony was corroborated by Mr. Wendland’s brother, who told of warning him about drinking and driving just five days before the accident.

Removal of artificial feeding devices from brain-injured patients, tragic though it may be, is all too familiar in medical-legal circles. Since the late 1970s the issue of removal of life-sustaining medical treatment from incapacitated patients has been a rapidly-developing area of the law, with the U.S. Supreme Court even weighing in at one point, in the case of Missouri resident Nancy Beth Cruzan. Mr. Wendland’s story, however, is different from almost all the other cases reported in the courts.

Nancy Beth Cruzan (and, before her, Karen Ann Quinlan) was diagnosed as being in a “persistent vegetative state” (PVS). Although the diagnosis is relatively new, it has been well-described in the past quarter-century. PVS is not the same thing as “comatose;” comatose patients are completely unresponsive to external stimuli, while PVS patients often respond to noises, temperature changes and touch. In fact, PVS patients may appear to be awake, and even follow movement with their eyes. Properly diagnosed PVS patients, however, do not recover significant cognitive functioning—unlike comatose patients, who may awaken even after extended periods of unconsciousness.

Although Mr. Wendland was in a sixteen-month coma immediately after his accident, he is now awake and at least partly responsive. He can (after repeated instructions) operate a motorized wheelchair’s joystick control, and has drawn the letter “R” on command. Sometimes he cooperates with therapists enough to match colored blocks, again after instructions have been repeated multiple times.

Most remarkably, Mr. Wendland has (on at least one occasion in 1997) communicated with his physician by pushing or pointing at bars on an “answer board” set up to assist him. The physician first ascertained that Mr. Wendland’s answers were not random by asking “Are you Robert?” [Yes] “Are you Michael?” [No] and similar questions. Then he moved on to the questions central to Mr. Wendland’s future:

“Do you have pain?” [Yes]
“Do your legs hurt?” [No]
“Do your buttocks hurt?” [No]
“Do you want us to leave you alone?” [Yes]
“Do you want more therapy?” [No]
“Do you want to get into the chair?” [Yes]
“Do you want to go back to bed?” [No]
“Do you want to die?” [No answer]
“Are you angry?” [Yes]
“At somebody?” [No]

Despite his ability to respond to questions appropriately, his physician opined that Mr. Wendland did not seem to understand all the questions, and his answers could not be trusted.

The trial court appointed Mrs. Wendland as her husband’s conservator, but specifically limited her authority so that she could not remove his feeding tube. She appealed, and was joined by Mr. Wendland’s court-appointed attorney. Mr. Wendland’s mother and sister asked that the trial judge’s ruling be upheld.

The Court of Appeals’ 70-page opinion begins with a simple, but eloquent, observation: “This is the hardest case.” The appellate court then directs the case back to the trial court level, instructing the judge to hold further hearings and to permit Mr. Wendland’s mother and sister to put on any evidence they might have about his wishes prior to his injury.

After that evidence is in, according to the Court of Appeals, the question for the trial court is whether Rose Wendland has made her decision in good faith and based on medical advice. The trial judge’s determination that the feeding tubes could not be removed was reversed, though the final outcome is not certain, even seven years after Mr. Wendland’s tragic accident. Conservatorship of Wendland, February 24, 2000.

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