Life or Death Decisions

November 27, 2003

Recently, the news in the United States has been dominated by the struggle over the life—and death—of Terri Schiavo, the Florida woman who has been in a coma for over 13 years. This sad struggle, which should have been a very private matter, demonstrates why it is imperative that gay couples and singles should execute a written document called an advance directive.

I don't know any more about Terri Schiavo than what has been said in the press. Thirteen years ago, at the young age of 26, Terri suffered an apparent heart attack which left her in a persistent vegetative state. Since that time, Terri's husband has been battling over her care with Terri's parents, who have accused him of attempted murder, among other things. The gist of the battle is this: Mr. Schiavo contends that his wife would not want to be kept alive in this state; her parents believe otherwise. Although Terri is able to breath on her own, she is kept alive by means of a feeding tube. Mr. Schiavo wants to remove the tube, thereby allowing Terri to die; her parents want to keep her alive, believing that she will recover in time.

After years of legal wrangling and many court battles, a court granted Mr. Schiavo's request to allow Terri's feeding tube to be removed. Goaded on by a coalition of anti-abortion groups and advocates for the disabled, the Florida legislature unwisely (and probably unconstitutionally) intervened, passing a law specifically ordering the tube replaced. Governor Bush quickly signed the law and Terri's tube was replaced. As of this writing, Terri's husband is back in court with a challenge to the law that most legal observers believe he'll win.

I bring up Terri's case to make an important point: if it is this difficult for a legal spouse to make a decision such as this in the face of family opposition, you can imagine how much more difficult it would be for a same-sex couple. As I've said in my previous comments about estate planning, if you don't make these decisions for yourself when you are able, then you leave these decisions to others in your family who may not respect your wishes.

Terri Schiavo was a young woman at the time of her heart attack. She apparently never gave great thought to mundane things, such as who should make medical decisions on her behalf if she were unable to do so, or what she would want them to do or not do. As we probably all do at one time or another, she may have expressed her wishes to her husband. He claims that she would not want to be kept alive in the state she is now in. Unfortunately for all concerned, Terri never wrote her wishes down and so it is left up to the courts to try to determine what Terri would have wanted.

In the absence of a valid advanced directive, when a person, such as Terri, becomes incapable of making medical decisions for them self, states usually defer to other family members, who are considered to be acting in the best interests of the incapacitated person. In the case of a minor, the parents or legal guardian are legally entitled to make the decisions. In the case of an adult, deference is given to the legal spouse, if there is one, after which the decisions can be made by an adult child of the incapacitated person, if there is one, then a living parent, etc. If there is no family, the decisions are made by a court-appointed guardian or conservator.

Notice that this chain of decision does not include your gay partner. Under the laws of most US states, your partner has no place in this process, with the exception of Vermont civil unions and California registered domestic partners, who have been extended many of the same rights as married couples. Even these couples need to be cautious — their rights in this area do not currently exist outside of those respective states. You need to have an advanced directive.

The most important document is the medical power of attorney, which designates the person who you want to make medical decisions on your behalf if you are otherwise unable to do so. In most states, this document should be witnessed and notarized, and you should review it periodically and modify it, if needed.

You should also have a designation of guardian or conservator. This document directs a court to appoint a named individual as your conservator over your estate and/or your person, should the need arise. Although the court is not usually required to appoint that person, most will do so unless there is a compelling reason not to do so. You may also list those individuals that you do not want to be appointed and, in most states, the court is legally unable to grant conservatorship to those persons. As in the medical power of attorney, you should name at least one alternate conservator in case the first named person is unable or unwilling to take on the responsibility.

You may also want to have a physicians' directive, which tells a doctor whether or not you want any extraordinary measures to be taken if you are near death. Such measures can include withholding food, water and medicines, or removal from a respirator. In most states, if a treating physician is unwilling or unable to follow your directive, another physician must take over your care. In addition to providing a copy of this to your partner or best friend, a copy of this should be given to your regular doctors and brought with you if you are admitted to a hospital.

Finally, you should consider drafting a hospital visitation designation, which directs who should and should not be allowed to visit you in the hospital, just in case the staff is reluctant to immediately honor the medical power of attorney. Nowadays, most hospitals will recognize gay partners and allow them in the room but this can help convince even the most reluctant nurse.

Most attorneys have these documents in template form and can draft them for you for a reasonable fee. You can also get copies of such directives through Nolo Press, at http://www.nolopress.com, but if you do it yourself, you should at least have a local attorney review them to ensure they conform with your state's laws.

As always, it is of no help if your otherwise-valid advance directive and related documents are not readily available to others. In addition to giving the original to the person you've appointed to make your decisions, you should also provide copies to all of your physicians and family members. I also recommend that you discuss your directives with those people you give copies to so that they are aware of your wishes and talk with you about the choices you've made.