Petley-Jones & Co Law Corporation

Ralph Petley-Jones

Nanaimo Lawyer

Ralph Petley-Jones  B.Comm.  LLB
5732 Hammond Bay Road, Nanaimo
British Columbia, Canada V9T 5N2
250 758.7370
fax 250 758.8703
 

LIFE AND DEATH QUESTIONS

You may or may not have heard of the Terri Schiavo case in Florida. Schiavo was 39 years old at the time the case became widely public, and had been in what doctors call a persistent vegetative state for many years as the result of a heart attack cutting off the oxygen supply to her brain. Terri seemed aware of her surroundings, was capable of greeting visitors, and opened her eyes on command, but her doctors said this was a reflex action that did not mean her damaged brain could consciously perceive objects. Her parents said she responded to them and could benefit from experimental treatment.

Unfortunately, Terri's parents and her husband were in disagreement as to whether her life support should be terminated. The case spawned much publicity in the United States. Religious groups coalesced around her parents and right-to-die advocates were drawn to the husband's position. The case went to the courts of Florida, which upheld Mr. Shiavo's right to terminate his wife's life support.

Her parents appealed to the Florida legislature and, in an extraordinary move Governor Jeff Bush, brother of former President George W. Bush, and the Florida legislature ordered that life support be continued. Extensive legal and political wrangling for seven years ultimately resulted in success for Mr. Schiavo; Terri's feeding tube was removed for the last time and she was allowed to die.

Obviously, there is no easy solution to these kinds of issues. The very essence of life was grappled with by courts of law and the legislature. As is typical in such situations, various special interest groups got involved and the case took on a life of its own. Unfortunately the human aftermath was that Terri sat in a hospital bed in Florida with little chance of resuming her former life, and her parents and her husband did not speak to one another. In fact, the parents were not even allowed to visit their daughter alone, because her husband retained legal guardianship.

In the USA the legal test was "clear and convincing evidence" of Terri's wishes. The courts partially focused on a statement that she made to her husband after watching a television show. Apparently the gist of it was that she did not wish to be kept alive under circumstances in which she believed she had a drastically altered existence. This is thin proof of her intentions.

It is common ground that if Terri Schiavo had a living Will or, in proper terminology, a health care representation agreement, her husband would have the right to make such decisions.

The Representation Agreement Act made such agreements possible in 2000. These documents usually contain a general statement concerning a person's wishes. For example, it may say they do not wish extraordinary measures taken to keep them alive. The agreements also stipulate a specific person or persons that would make these decisions. A list of alternates can also be drawn up.

In the absence of a health care representation agreement a pecking order of classes of relatives may equally have a say in health care decisions. The Public Trustee may become involved if there is a dispute. If there was a dispute between the same classes of family members or, as in the Shiavo case, disputes between parents and a husband, the agreement would be definitive as to the patient's request. In the Shiavo case the husband should have been the priority decision maker, but the issue still ended up in court.

Even if you do not think your family would squabble over such issues, it is hard to know until the time comes. Deep religious and philosophical differences or plain hostility between potential decision-makers are your early warning signs. Proper planning provides peace of mind and reduced family stress, and it will hopefully keep your personal life out of the court system. It is always wise to have the proper documentation in place so that your wishes can be carried out according to what you specifically stated, not what someone else thinks you wanted.

It is a difficult and stressful decision to turn off someone's life support. Some people would have great difficulty making such a decision. You need to make sure the person you appoint or the default decision-maker (in the absence of a representation agreement) is capable of carrying out your wishes.

In some ways, having a health care representation agreement is like insurance. You hope it never has to be used but, if necessary, it is in place to protect you and your loved ones from unnecessary uncertainty, strife, ill will, and potentially costly legal wrangling.

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