As a result of publicity over the Terry Schiavo case, I have received several inquiries from clients and others about the use of living wills and advance directives in Colorado. After reviewing the living will and medical durable power of attorney forms published by the Colorado Bar Association, and Colorado’s statutes governing living wills and other advance directives, I concluded that, contrary to popular opinion, having a living will probably would not avoid a Terry Schiavo-type legal battle in Colorado. More is needed.
Media reports describe Terry Schiavo’s condition as a “persistent vegetative state;” her brain stem remained functional and provided autonomic responses. The Colorado Medical Treatment Decision Act, which authorizes and governs the use of living wills in Colorado, appears to authorize such declarations only to address a future situation in which the declarant is in a terminal condition, defined as “an incurable or irreversible condition for which the administration of life-sustaining procedures will serve only to postpone the moment of death.” Life sustaining procedures are specifically defined to exclude a feeding tube. Colorado law also defines death as requiring a cessation of all functions of the brain, including the brain stem. Thus, even if Ms. Schiavo had signed a “living will,” it probably would not have avoided a legal battle in Colorado over withdrawal of her feeding tube. At best, it might have been admitted to support Michael Schiavo’s testimony about what his wife would have wanted, but it would have been vulnerable to attack on the basis that it did not apply to her situation.
The living will has limitations even if two physicians have certified that the declarant has a terminal condition. Under the Act, the physicians cannot withdraw life sustaining procedures until 48 hours have passed since the certification and no action has been filed in court challenging the validity of the living will. If the validity of the living will is challenged, it cannot be upheld until a guardian ad litem is appointed for the patient, interested parties are notified, and the court hears evidence.
So how does a Colorado resident make a declaration that would be effective in a “persistent vegetative state” scenario such as that Terry Schiavo suffered? In addition to executing a living will under the Medical Treatment Decision Act to cover a terminal condition scenario, one should execute a medical durable power of attorney under the Colorado Patient Autonomy Act, appointing an agent to make health care decisions. This latter Act authorizes a person to execute a medical durable power of attorney which includes in the agent’s authority the authority to consent to or refuse medical treatment, “including nourishment and hydration.” If the medical durable power of attorney form includes statements providing clear and convincing evidence of the declarant’s wishes concerning end-of-life medical treatment, the document may be self-executing even if the agent is not present or is uncooperative in a contested situation such as Terry Schiavo’s, where the central issue was what the patient herself would have wanted.
Whether a patient’s condition is terminal or not, in the event of a family conflict over the recommendation of a hospital’s ethics committee, the decision to withdraw life support will ultimately be determined by the courts. As we have seen in the Schiavo case, both the hospital committee and the courts will give great weight to any document the patient has signed. To avoid a protracted legal battle over a family conflict, it’s best to sign both a living will to cover a terminal condition, and a medical durable power of attorney which not only appoints an agent and authorizes the agent to make end of life decisions, but also provides clear statements about the declarant’s wishes regarding withdrawal of life support in circumstances not limited to a terminal condition. The power of attorney should state as clearly as possible what the declarant considers necessary to quality of life, in order to guide the agent, the hospital committee, and the court in a situation which is unknowable at the time the declaration is signed.
For assistance with your estate planning needs, please contact one of our Michael Smeenk.