Time to Make Your (Detailed) Choices Known

By Meteor Blades

Three positive developments have arisen out of the rancid spectacle being played out in the megamedia and halls of Congress this past week.

First, of course, barring some insane outlawry by officials or vigilantes, Terri Schiavo will soon make her passage to whatever is on “the other side,” as I am convinced she would have wanted a decade and a half ago given the choice.

Second, families and friends are making clear their intentions about what they want done for themselves in similar circumstances. Surcease and release are what poll after poll after poll indicates the majority would want.

And, third, possible political damage done to the theocratic wing of the Republican Party should be spurring us to send thank-you e-mails to Tom DeLay and Dr. Frist.

Without their ferocious meddling in this private affair, the majority of Americans who still don’t have living wills or advance directives might not yet be thinking about such matters, nor be so outraged that partisan hooligans might try to override citizens’ most personal decisions merely to get an edge in the next election.

Bloggers all over the place have aided in this effort. Not only have we seen immensely satisfying rants like Hunter’s and Echidne’s, plain-language legal briefs like jsdmlawyer’s, and we’ve also heard a host of personal life-and-death stories from people like Pericles’s, who’ve made the rest of us empathize and think. And while there has been plenty of talk about how all the attention on Schiavo has crowded out important news about the Iraq war and the war on the social safety net, I think the past week has been generated one of those rare moments of crystalline clarity that will ultimately play out favorably for those of us who truly believe in - rather than just belch rhetorical hackery about - personal liberty.

I’ll leave advice on the political strategy that should arise from this moment to those far more skilled than I, except to say that caution is in order. Replacing rightwankers’ meddling with our own is not only risky but - dare I say? - immoral. On the personal level, however, I urge everyone to follow through on those end-of-life discussions that could be forgotten as soon as Terri Schiavo passes over and the megamediators return to their coverage of Michael Jackson’s PJs.

Early this week, Roxanne over at Rox Populi provided us with a link to The Living Will Registry. The site offers a plethora of on-line documents and advice for a DIY approach. But today’s essay by the always thoughtful Michael Bérubé delivers some caveats because of court cases regarding advance directives, oral or written. He quotes from a summary of In re Martin (450 Mich. 204; 538 NW2d 399 (1995):

In determining whether a person, now incompetent, would desire to refuse life-sustaining medical treatment under the circumstances, the predominant factor is the existence of a prior directive to that effect. The prior directive may be written or oral. The weight of an oral statement depends upon the remoteness, consistency, specificity, and solemnity of the statement, and a statement made in response to another’s prolonged death does not provide clear and convincing evidence of the desire to refuse treatment. In this case, the patient was severely injured in an automobile accident, and suffered brain damage which significantly impaired his physical and mental functioning. The injuries left him partially paralyzed; he cannot walk, talk, or eat and has no bowel control. Although he remains conscious, his cognitive abilities are seriously affected. Testimony established that before his accident the patient had verbally repeatedly expressed his desire not to be maintained if incapable of performing basic functions and without hope of improvement. The patient’s expressions did not sufficiently specify the circumstances presented and did not constitute clear and convincing evidence of the desire to refuse treatment.

Yikes. As Bérubé says: OK, what to make of all this? First, that the supreme courts of Michigan and California have set an astonishingly high standard as to what constitutes “clear and compelling” evidence of an individual’s wishes.

Having in the past six weeks helped spread my mother-in-law’s ashes along her favorite hiking spot on the Columbia Gorge, watching my stepfather now living out his last months, and having just “commemorated” the first anniversary of my own brush with death from a pulmonary embolism, advance directives have been much on my mind.

My wife says that her mother and father (who died just 18 months ago of Parkinson’s) often talked about how they wouldn’t want to remain alive if they were minimally conscious or comatose with no reasonable hope of recovery. Unfortunately, they didn’t write a single word of this down, and by the time my mother-in-law’s dementia from Lewy Body Disease had robbed her of enough cognition to make her own decisions, it was too late. An advance directive, I thought, would have released her months before the end actually came. My wife and I long ago wrote living wills, granted each other durable power of attorney for health decisions and wrote thorough advance directives that I thought were ironclad.

Now, I’m not so sure.

What I do know for sure is that, assuming there’s an afterlife, I’ll be back to haunt any GOP ghoul who intervenes to rescue me from my clear intentions if I should wind up - gawd forbid - like Terri Schiavo.

Comments

[DHinMI]

Michigan Public Radio has been playing a piece all day about how this week the State Bar's website has been getting five times its normal traffic, mostly because they post information on advance directives, living wills, etc.

[cotterperson]

In a class on death and dying, my professor said a health care power of attorney is more foolproof. That's what I've got for my 85 y/o mom, and must get for myself! My governor (Arkansas) is a Southern Baptist who believes it's the government's job to determine what life is. OMG, I can just see him at my door!

[Mike S]

I'd get both a living will and Durable Power of Attorney. Of course my mother told me she'd off me herself in this situation so I'm not sure I'll need either.

[knobboy]

The most important things to do are:

1. Power of Attorney - Upon your incapacity, appoint someone to conduct your affairs, including health care. Avoids having to go to Court to get a guardian/conservator appointed.

2. Living Will/Health Care Declaration - unambiguous expression of your wishes and desires.

3. Will, especially if you have minor children, or children from a prior marriage.

The requirements of these documents vary from State to State. Do it. Do it now.

Think of it this way: when you're dealing with this kind of stuff, once it happens, it's too late.