The one estate planning document that everyone 18 and older should have is an Advance Health-Care Directive. It is not the sexiest tool in the estate planning toolbox, but it can head off family strife, heartache, and needless attorney’s fees as no other document can.
Karen Ann Quinlan, Nancy Cruzan, and Terri Schiavo. Sound familiar? They were three beautiful young women whose legacies are protracted legal battles over how they would be cared for after they lost the ability to speak for themselves.
Karen’s case determined that “medical treatment” includes life-sustaining measures (such as use of a ventilator to keep a person breathing), and that those measures can be declined by a patient or someone acting on the patient’s behalf.
Karen’s parents succeeded in having the ventilator that was keeping her alive removed, but Karen lived another 10 years because her parents did not believe that food and water should be withheld from her.
Nancy’s case went a step further. In that case, the battle was between Nancy’s family, who believed that Nancy would not want to be sustained on a tube, and the State of Missouri, who asserted that only the patient can make that decision.
Unfortunately, Nancy had never given written instructions about her wishes. After Nancy’s family presented sufficient evidence to convince the court that Nancy did not want to be kept alive on a tube, food and water were withdrawn.
She died 13 days later, but eight years had passed since the car accident that had rendered her incapacitated and launched the legal battle over her care.
Terri’s case involved the question of who has the authority to make end of life decisions on behalf of an incapacitated person. The law of Florida, where Terri lived, automatically conferred that authority on her spouse.
When the dust cleared following the legal battle between Terri’s husband and her parents over whether her feeding tube should be removed, Florida law was upheld, and Terri’s husband gave the order that led to Terri’s death 13 days later.
These cases teach us is that we have a right to say “enough is enough” when it comes to our medical care, including tube feeding. We also have the right to name who will speak for us when we cannot speak for ourselves.
The only way to be sure that your wishes will be known and carried out is by having a clear and comprehensive advance health-care directive.
Scott Makuakane, Counselor at Law
Focusing exclusively on estate planning and trust law.
Watch Scott’s TV show, Malama Kupuna
Sundays at 8:30 pm on KWHE, Oceanic channel 11
www.est8planning.com
O‘ahu: 808-587-8227 | maku@est8planning.com
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