Californian’s need for Advance Health Care Directive

This week's question:

I have read several news accounts about Terri Schiavo, the Florida woman, and the fight between her husband and her parents about whether to let her die by removing her feeding tube. How can I as a California resident avoid such a horrible spectacle? Isn't there a better way?

Valerie V.
Almaden Valley

Dear Valerie:

Yes, Valerie, there is a better way, at least in California. We in California need to take a good look at having an Advance Health Care Directive so that our wishes as to health care are made known to our family and friends.

The case of Terri Schiavo is tragic indeed, even aside from the human suffering involved. For our readers who haven't heard about this case, Terri Schiavo is the Florida woman who suffered a cardiac arrest because of a potassium imbalance, possibly related to an eating disorder.

After Terri was resuscitated following a collapse 13 years ago, she lapsed into what doctors diagnosed as a "persistent vegetative state." Although she was not comatose, she was so brain-damaged that she seemed to have no cognitive ability.

Over the past 13 years, Terri's husband and her parents have been fighting legally about whether to remove her feeding tube. The cost in terms of family disintegration, financial, legal, and loss of privacy has been enormous.

Californians in most instances can avoid a horrible situation like this by having their wishes made known through an Advance Health Care Directive. Our legislature has established for these directives in the Probate Code, §§4600 and following.

Although under §4670 a Directive can be oral, it seems to me that having this directive in writing is much better than having it oral. It may be "statutory" or of your own composition.

As to the statutory form, §4671 allows you to name an agent to make health care decisions for you and you may include individual health care instructions. This is an intensely personal topic, so only you can make your wishes known. You may want to specify to prolong life as long as possible within the limits of generally accepted health care standards (§4701). This, of course, could involve a feeding tube and other measures to keep you alive for a long period of time.

On the other hand, under the statutory form you may elect to not prolong life if you have an incurable and irreversible condition that will result in your death within a relatively short time, or if you become unconscious and, to a reasonable degree of medical certainty you will not regain consciousness, or if the likely risks and burdens of treatment would outweigh the expected benefits (§4701).

You may make your directive effective immediately or you may make it effective only under certain conditions. You may also amend, revoke or cancel any of your previous directives or powers of attorney for health care.

In your health care directive, you have the right to name an agent to make health care decisions for you if you cannot make those decisions yourself. You may also name an alternate if needed.

If you wish, you may specify that treatment for alleviation of pain or discomfort be provided at all times, even if it hastens your death.

You may also name a conservator in your Advance Health Care Directive, should one become necessary. This person would serve to help manage your person or estate or both if needed.

It seems to me, Valerie, that it is very important for you to have your health care wishes made known to your family or friends, so that they can follow your directions. In the process, you will more than likely avoid any kind of a tragic situation like the Florida case. And I certainly would not wait until later to make out an Advance Health Care Directive. When Terri Schiavo collapsed, she was only 26 years old.

Donald J. DeVries
Almaden Valley

Almaden Attorney Donald J. DeVries writes this Almaden Times column, and can be reached by e-mail at don@almadenvalleylawyers.com, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Solmonson, 6475 Camden Ave., Suite 200, San Jose, CA 95120. Your matters are personal and private and he will not disclose your identity or any details about your situation. Want to learn about a specific legal issue or how DeVries can help you? Visit his Web site at www.almadenvalleylawyers.com. Almaden Times columns since 1986 are available there. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. You should consult an attorney before taking any action that would affect your personal or business matters.