In 1990, Terry Schiavo was only twenty-six (26) years old when she suffered cardiac arrest and fell into an irreversible vegetative state. A bitter, highly-publicized and years-long battle ensued in the Florida courts between Terry Schiavo’s parents and her husband over whether she would have wanted to prolong her life via artificial means after entering a vegetative state. Terry Schiavo’s husband argued that she would not want her life continued via artificial means, whereas Terry Schiavo’s parents argued that their daughter would have wanted to live and should be kept alive. After the matter progressed through the Florida courts, the U.S. Federal 11th Circuit Court of Appeals and ultimately the Supreme Court of the United States, the Florida courts’ judgment in favor of Terry Schiavo’s spouse Michael Schiavo was upheld, and she passed following the removal of her feeding tube. Even more recently, the importance of medical directives again became front-page news after the death of Bobbi Kristina Brown, daughter of the late singer Whitney Houston. Bobbi Kristina Brown was only twenty-two (22) years old when she passed in July of 2015. In January of that year, Bobbi Kristina Brown was found unresponsive in her bathtub. She never regained consciousness and was placed on life support until her death. Her family publicly battled over the medical choices they believed Bobbi Kristin Brown would have wanted. The tragic deaths of Terry Schiavo and Bobbi Kristina Brown highlight the importance of end-of-life planning regarding medical decisions at any age – whether elderly or just reaching the age of majority.
Planning end-of-life medical decisions now not only guarantees that your wishes are followed when you can no longer express them, but it also protects your loved ones from having to make extremely difficult decisions for you. Every adult should have medical directives and documents prepared, which includes a Medical Power of Attorney, a Declaration (also known as a Living Will) and a HIPAA Release form. Depending on the circumstances and your wishes, Medical Powers of Attorney and Declarations can be drafted to include your specific needs.
1. Medical Power of Attorney: A Medical Power of Attorney allows you to select a person, in Louisiana known as your “agent,” to make medical decisions for you if you become incapacitated and unable to make or express your wishes. Often, the agent selected is a spouse or family member familiar with your wishes regarding end-of-life medical treatment and care. Selecting a successor agent in case your agent is unable to serve is recommended to ensure that you are adequately protected through your Medical Power of Attorney.
2. Declaration: A declaration, or Living Will, provides whether you wish to have your life resuscitated or sustained through artificial means or have such artificial life-sustaining means withheld in the event that you have a terminal and irreversible condition. A Declaration may also provide whether you wish to receive palliative care(*1), focused on your comfort, at the end of life as opposed to invasive medical proceedings. Louisiana law provides for such declarations under Louisiana Revised Statute 40:1299.58. It is important to make your wishes as established through your written declaration known to your close family members and physicians. Your local hospital likely has a registry to store Declarations or may add yours to your individual file. The Louisiana Secretary of State’s Office also offers a registry for Declarations.
(*1) Local Doctor John P. “Jack” McNulty, MD, FACP, FAAHPM has worked extensively in the field of palliative care. He founded the non-profit Palliative Care Institute of Southeast Louisiana in 2002 and also serves as the Director of the Palliative Rural Education Project for Louisiana and Mississippi. His practice includes Internal Medicine, Palliative Medicine & Hospice and Chronic Pain Management.
3. HIPAA Release: HIPAA, which stands for Health Insurance Portability and Accountability Act, is a medical privacy statute that prevents physicians from sharing patients’ medical history and care without authorization. A HIPAA release is essential to ensure that your physicians are able to share your medical history and information as needed with your agent. However, you may select multiple individuals besides your agent, such as trusted family members, in a HIPAA Release. A HIPAA Authorization may be provided for in the Medical Power of Attorney but in many situations, individual HIPAA Releases are also important.
4. Children Away at College(*2): In Louisiana and many other states, eighteen (18) years old is the age of majority. Once a child reaches the age of majority, his or her parents no longer have the authority to make medical decisions for the child. The topic of end-of-life planning and medical directives is uncomfortable to discuss, especially with a child likely on his or her way to college, but essential. Start a discussion of medical directives with your now-adult child by mentioning Terry Schiavo or Bobbi Kristina Brown, as it is highly likely your child has heard their names and may already be familiar with the issues being raised. For parents of children going to college, it is extremely important to have a HIPAA Release signed by the child if the child still wishes to have his or her parents included in his or her medical treatment. Many colleges and universities provide a HIPAA Release document at the schools’ health centers, which you and your child can fill out and return to the college or university health center to be kept on file. Without a HIPAA Release, the child’s doctors will be unable to share medical history and treatment if the child has reached the age of majority.
End-of-life planning and medical decisions are difficult and emotional topics to discuss, but their importance cannot be overstated. All adults should consider having the three previously discussed documents prepared and their wishes made known and should also encourage their children upon reaching the age of majority to do the same. It is important to keep these documents in a safe place that is easily accessible in case of an emergency. Discussing and making these decisions now will spare your loved ones from making incredibly difficult choices for you should you need them. Planning early for yourself and your loved ones will provide peace of mind for everyone involved.
(*2) If your child attends a college or university outside of Louisiana, you should check the state laws for the state in which your child is residing and make sure any documents that you are executing are compliant with that state’s requirements. The requirements for executing valid health care documents may differ between the states.
** Disclaimer: Viewing and/or use of the information contained in this blog post does not establish an attorney/client relationship and should not be considered legal advice. This post is meant to provide general information on certain legal topics and is not to be construed as creating any sort of attorney-client relationship.