LLA Members Comment on Advance Directives

Several LLA members were quoted in article appearing in the Williamsport Sun-Gazette on March 29, 2005:

Death Decisions - Schiavo case shows need for advance directives

The Terri Schiavo controversy has sparked an increase in interest in advance directives, two local attorneys said Monday.

“We’re getting a lot of calls from clients making sure their documents are up-to-date and do what they want them to do,” attorney Jeff Marshall of Marshall and Associates, said during a phone interview Monday.

In Pennsylvania, there are two types of advance directives, Marshall said. A “living will” is a legal document that instructs an individual’s health care providers how to carry out medical decisions if the individual becomes comatose or incompetent and terminally ill.

It typically contains a checklist of treatments individuals will designate that they do or do not want, including cardiac resuscitation, mechanical respiration, tube feeding or other artificial or invasive forms of nutrition or hydration, blood or blood products, surgery or diagnostic tests, kidney dialysis, antibiotics.

Those who choose to execute a living will must be at least 18 years old, or have graduated from high school, or be married, according to information provided by the office of state Rep. Steven W. Cappelli, R-Williamsport. The document must be signed by two witnesses at least 18 years of age, then given to the individual’s physician.

The other advance directive is a Health Care Power of Attorney, which designates a person — or “surrogate” — to make health care decisions for an individual.

Marshall, who specializes in elder law, said he favors the health care power of attorney advance directive. That type of directive applies to not only terminally ill individuals, but non-terminally ill people such as those who have Alzheimers disease.

Only about 20 percent of people who are unable to make their own health care decisions are terminally ill, he said.

Attorney James G. Malee, who specializes in estate planning, elder law, and estate administration, said he has noticed an increase in advance directive inquiries.

Malee said he also favors appointing an individual to make health care decision.

“Naming a substitute decision-maker is more important,” Malee said. “How can you gauge whether you’ll want a ventilator or feeding tube?”

“It’s so hard to pick that out,” he said. “But we do know who we trust.”

A living will is flawed because it ‘requires us to have a crystal ball,” Marshall said. “Who knows what types of treatment alternatives will be available 10 years from now?”

“Who knows what the future holds? he said.

Living wills provide an option to designate a surrogate, but there is some question as to whether that individual may legally make decisions contrary to the directive, Marshall said.

Both attorneys said that designating a health care decision-maker is better done sooner than later. Individuals should discuss their wishes with the person they designate, they said.

“You need to talk about it now. You need to get it signed, put it in your top drawer and get on with your life,” Malee said.

Once the document is prepared and signed, it should be reviewed periodically, he said.

An advance directive should be prepared with the assistance of an attorney, Malee said.

“Attorneys will bring questions to the table you would never think about,” he said. “You do it. You get it done right.”

The interest in advanced directives that the Schiavo case has generated may be the only good thing to come out of the controversy, Marshall said.

Schiavo would be dismayed to see how something that should have been a private matter between her, her family and her physician has been played out in the media, Marshall said.

“It’s good she can’t see what is happening to her,” he said. “If she were conscious, she would be mortified.”

An advanced directive would have prevented the situation, he said.

“If there is anything good that has come out of the tragic Terri Schiavo case, it is the raising of awareness about people’s wishes,” Michael O’Keefe, CEO of Evangelical Community Hospital, Lewisburg, said in a press release. “Hopefully, people will sit down with their loved ones and discuss the importance of this issue.”

Information on advanced directives is available at Cappelli’s office at 160 Williamsport Building, 460 Market St.