Sometimes it takes a tragedy to catch the attention of the public. Terri Schiavo proved something every lawyer knew but many couldn’t clearly illustrate and that wasn’t widely recognized. In the tragic end to her life, the problem is clear for all to see. While much of the tragedy of the end of the life of Terri Schiavo is viewed as involving highly emotional and spiritual “right to die” issues, perhaps the best lesson revolved around what a twenty-seven-year-old woman, Terri Schiavo and her husband had not done; they had not considered the need to have written advance directives. The Schiavo’s were too young to need anything like that!
Let their horrible experience be a lesson to you. Advance directives are important! The listing in this article of essential documents is our effort to give comprehensive coverage to a broad topic. This and the following articles will tell much of what should be done to assist your family at the most difficult of times.
Terri Schiavo had a cardiac arrest in her St. Petersburg home in February 1990. She “lived,” but suffered severe brain damage due to lack of oxygen to her brain. She remained in a persistent vegetative state for the next 15 years while a legal battle raged around her.
For the first eight years, her husband, her parents and family as well as many physicians attempted ordinary and even extraordinary therapies and treatments, hoping to return her to consciousness, without success.
After eight years of failure and frustration, her husband Michael, filed a petition with the Circuit Court in Pinellas County, Florida to remove her feeding tube to allow Terri to die. Her parents opposed that petition and argued that she was conscious and that this was murder. Based in part upon the testimony of her husband that Terri had indicated to him that she would not have wanted to live in a vegetative state like that, the court determined that Terri Schiavo would not have wanted to continue life-prolonging measures. Her feeding tube was removed under a Court order. It was then reinserted several days later when the case was appealed, and other lawsuits were filed. Years later, Terri Schiavo’s feeding tube was again ordered removed. After more lawsuits and appeals through the federal court system, the original decision to remove the feeding tube was upheld and staff at the hospice where she had lived for years removed the feeding tube. Thirteen days later, on March 31, 2005, Schiavo died.
Setting aside the rights and wrongs of the many issues surrounding this tragedy, are painful truths: 15 years of lying in a vegetative state, 7 years of litigation, having the U.S. Congress and the President of the United States try to legislate to protect her, and becoming a national spectacle, were not necessary and could have been avoided. Terri was 27 when she suffered her cardiac arrest, and she was 41 when she breathed her last breath. More than a third of her life was spent in a persistent vegetative state. How could this have been avoided? With advance directives and other related documents.
What are Advance Directives?
The concerns can come from many different directions; you may be thinking about the natural decline at the end of life due to the normal aging process. Or the thought could be that a temporary medical or psychiatric condition or an accident might cause permanent damage resulting in a persistent vegetative state like Terri Schiavo’s condition. Regardless, there may be hours, days, months or, as in the case of Terri Schiavo, years, when a person is unable to make medical or any other decisions. These are the times when several essential advance directives and the related documents identified below become so important.
The word “directives” is plural for a good reason; there are several different types of advance directives and related essential documents, each serving a different purpose with each working differently but also working together. To make matters more confusing and difficult, in different states the different advance directives even have different names. Often there are different legal requirements and technicalities in different states.
These are significant legal documents of life-extending or ending importance. No one should prepare any of these documents casually; they require understanding and careful attention. That is true even though any person 18 years of age or older can execute advance directives. Drafting a proper advance directive form may require guidance and assistance from a physician and an attorney.
The Florida Supreme Court has approved forms for several advance directives. Even so, it may be wise to speak with an experienced attorney to help with the drafting of any advance directives or similar document. Advance directives are commonly done at the same time as a part of an estate plan.
You may change or revoke any advance directive at any time, so long as you are legally competent. To be effective, changes must be made and executed as required by the laws of the state of the execution of the advance directive or during its modification or revocation. It typically is not as simple as just telling someone you have changed your mind and you want to revoke or change your written documents.
Advance directives are your way to inform your doctor and others, including your family, what kind of care and/or what treatments you would like to have (or would refuse) if you become unable to make medical decisions (for example, if you are in a coma). An accident or serious illness can happen suddenly, as it did for Terri Schiavo, and if you have properly executed advance directives, your wishes are much more likely to be followed. Well prepared advance directives may spare your loved ones the tragic stress of having to make hard decisions about your care or about withholding care while you are injured or sick.
Some of the different advance directives and related documents (using the common Florida names) are:
- Living Will
- Health Care Surrogate Designation
- Durable Power of Attorney
- Do Not Resuscitate Order (DNR)
- Pre-need Guardian Designation
- Anatomical Donations
Each of these will be discussed in the articles that follow.
- The laws governing advance directives and these other essential documents are state laws and vary from state to state. Florida’s laws are different from other states. The written laws are interpreted by Courts, so a statute may actually work very differently than it reads.
- While technically you do not have to have a lawyer to fill out these documents, it is a good idea because many advance directives become legally valid as soon as they are properly executed. The execution of will in Florida is surprisingly complex and doing it right is very important.
- Because different states’ laws are not the same, one state may not honor an advance directive even if valid in the state where it was executed. There is no easy solution to the problem this creates. The best solution is that if you are going to spend much time in another state, you may want to consider completing the advance directives for that state. If you move from one state to another, you need to determine if your old documents will be effective in your new home state.
Yes, this is confusing and at the same time these are hard issues to talk about and difficult decisions to make. Let us help. Call The Idlewild Foundation and we can walk you through this complex area and get you to an expert who can serve you. (813) 264-8713.
About the Author
John Campbell has retired from a 40-year legal practice as a trial attorney in Tampa. He has served in multiple volunteer roles at Idlewild Baptist Church in Lutz, Florida, where he met Jesus. He began serving as the Executive Director of the Idlewild Foundation in 2016. He has been married to the love of his life, Mona Puckett Campbell, since 1972.