What are Advance Directives and why do I need them?

The legal battle over the life of Terri Shiavo, age 26 when she went into coma, caused many people to stop and think about end of life planning through advance directives like Living Wills and Health Care Powers of Attorney. For a few months execution of such documents surged. How-ever, recent studies by AARP found that only 25% of all adults have ad-vance directives.

Just a generation ago CPR and the iron lung were considered extraordinary measures to save a life, but technology has changed medical treatment so that literally a body can be kept alive for years with no cognitive functioning. Most people have strong ideas about quality of life issues and dying. Sometimes people try to blur end of life decision-making and ad-vance directives with abortion or assisted suicide, but they are not the same. Advance directives are legal documents that express a competent adult’s wishes regarding medical decisions for his or her own body within the bounds of the law and appoints an agent to speak for him or her when a person can no longer communicate or make sound medical decisions. Ad-vance directives also give the agent access to critical medical information that would otherwise be restricted by HIPPA.

Both Living Wills and Health Care Powers of Attorney can be used in South Carolina, but they are not interchangeable.

For several years the South Carolina Bar and The Carolina Center for Hospice and End of Life Care have not recom-mended the Living Will as the document that best serves the needs of most people. A Living Will applies in only one situa-tion – that but for being on life sustaining equipment a person whose condition is irreversible and terminal will die in a rela-tively short period of time if life sustaining equipment is removed. Most doctors prefer families to make these decisions for their loved ones. A Living Will does not adequately serve someone with severe mental illness, or who is unconscious fol-lowing a car accident that for religious reasons would not want a blood transfusion, or who may not want a feeding tube in the event of advanced Alzheimer’s disease.

The Health Care Power of Attorney applies anytime a person is unable to make a decision for him or herself and allows the individual to select any competent adult to serve as their agent or attorney-in-fact to make medical decisions. Rarely are all adult children equal to the task of serving as agent. And the agent does not have to be a doctor or even a family member, which means a life partner can be the agent.

Statutory forms are available at local senior centers and from hospice, but many people prefer to have a qualified Elder Law attorney explain their health care options and customize the documents to address their individual concerns and de-sires. These legal documents are meant to protect you and your loved ones and are not costly to have a professional prepare them.

Since 1990 the “Adult Health Care Consent Act”, SC Code Ann. §et al., has governed what persons have pri-ority to make health care decisions for a patient that is unable to give consent. The act places all adult children on equal standing and an estranged spouse above the children. This act also allows an attending physician to administer health care to relieve suffering and prevent death or risk of serious bodily functioning or disfigurement when an authorized person is unavailable.

What bothered many people about the Terri Schiavo case in Florida was not so much that removing life sustaining treat-ment might end Terri’s life, but that Mr. Schiavo would be the one to make the decision. Many married couples choose their spouse as their agent and then name an alternate. Mr. Schiavo was clearly not a faithful, devoted husband and stood to in-herit hundreds of thousands of dollars if his wife died. While Terri’s money would be depleted if she lived, her parents were willing to visit and oversee her care. Unfortunately, headlining cases are often unusual in nature and involve large amounts of money. More commonly the disputes that go to court occur because of disagreements among adult children or between a late in life second spouse and an adult child, or the medical case also involves some kind of undue influence and financial exploitation of the elderly. Early selection of who you want to serve as your agent is wise and eliminates the ques-tion of competency and undue influence.


Disclaimer:  Information contained in this column is meant to be of general information on frequently asked questions concerning disability, elder law, estate planning and probate law, and does not contain specific legal advice to a client.  No attorney-client relationship is created by reading this column.

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