Life and Death Decisions
by: Iowa Legal Aid
As a result of the Terri Schiavo case, many people are talking about health care decisions. What happens when a person is no longer able to decide about their care? How can people let others know what they want doctors to do? No matter what you think about the Terri Schiavo case, it raises some important issues.
American common law recognizes the right to accept or refuse medical treatment. In 1914, the New York Court of Appeals said: "Every human being of adult years and sound mind has a right to determine what shall be done with his own body, and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages."
An early and well-known court ruling on the so-called "right to refuse treatment" was the Karen Quinlan case. In 1976, the New Jersey Supreme Court said Karen Quinlan had a constitutional right of privacy to stop treatment. Karen was in a persistent vegetative state and on a respirator. The New Jersey Supreme Court affirmed Karen's right to decide to stop treatment. It said because she was not competent to exercise that right, her guardian could do it for her.
A major legal decision by the United States Supreme Court came in the 1990 Nancy Cruzan case. Nancy's parents were her guardians. They wanted to remove "artificial feeding and hydration equipment." Earlier, the Supreme Court of Missouri ruled the guardians could not have the feeding tube removed. The basis of their decision was the lack of clear and convincing evidence that Nancy would have wanted the tube removed. Her parents appealed the case. Supreme Court Chief Justice Rehnquist said a competent person has a constitutional right to refuse unwanted medical treatment. The court went on say a state could require clear and convincing evidence of what the person wanted before letting a guardian decide to remove a feeding tube.
In the Schiavo case, the trial court found Terri Schiavo to be in a persistent vegetative state. The court determined she would choose to end life-prolonging procedures if she were competent to make her own decisions. Terri's parents vigorously disagreed. They believed Terri was not in a persistent vegetative state. The parents said there was no clear and convincing evidence she would want to have the feeding tube removed.
The Cruzan case made it clear that each state can make laws about medical decisions for those who are not competent to accept or refuse treatment. In Iowa, the two most important laws are the life-sustaining procedures law (Iowa Code Chapter 144A) and the durable power of attorney for health care law (Iowa Code Chapter 144B). These laws let people decide in advance about medical treatment if they become incompetent. The life-sustaining procedures act allows a person to prepare a "living will." The "durable power of attorney for health care" law lets people appoint someone else to decide for them about health care if they are not able to do so.
Important Definitions
Iowa Law defines what "life-sustaining procedure" and "terminal condition" mean. A life-sustaining procedure is a medical procedure which uses a mechanical means to prolong the dying process. Providing food and water through a feeding tube may be a life-sustaining procedure. A life sustaining procedure does not include any treatment needed to provide comfort, care, or control pain. A condition is terminal when there is no cure and the doctor believes it will result in death in the near future or a state of permanent unconsciousness.
Living Wills
- A living will lets a person direct his or her doctor to withhold or withdraw life-sustaining procedures.
- You may revoke a living will at any time. A person may use any way he or she can to let others know of the intent to revoke a living will.
- A living will does not take effect until a person is not able to make decisions and is in a terminal condition.
What happens if someone is in a coma, has a terminal condition, and does not have a living will? Iowa law sets out specific procedures which must be followed before life sustaining procedures can be withdrawn or withheld. There must be a written agreement to withhold life-sustaining procedure between the physician and an individual or individuals authorized by law to act on behalf of the comatose person. The law sets out in order who can make that decision. First is a person who has durable power of attorney to make medical decisions from the patient. If there no one has durable power of attorney for medical decisions, a court-appointed guardian has the authority to make the decision with court approval. If there is no person with durable power of attorney and no guardian, the law specifies, in order, who can make the decision. The list includes the spouse, children, and other relatives. Under the law, the express or implied intentions of the patient must guide whoever decides what to do.
Durable Power of Attorney for Health Care
While a living will lets people say what others should do in a particular situation, no one can predict every medical decision that may come up. For this reason, it is a good idea to prepare a durable power of attorney for health care. In a durable power of attorney for health care, a person appoints an "attorney in fact" to make health care decisions when the patient cannot. The statute includes the form to use. Just as with living wills, certain requirements must be met. The document must be notarized or witnessed. There are specific limits on who can be a witness. Most of the time, those who give health care to the person cannot serve as the attorney in fact.
Along with choosing the attorney in fact, you may give specific instructions to that person. You can use these forms to say what procedures you would like to have used or not used. For example, you might want to have a feeding tube but not a respirator. You may also designate alternate attorneys in fact.
Other Important Points to Bear in Mind
- The attorney in fact has authority to make health care decisions only if the principle (the person who signed the durable power of attorney for health care) is not able to decide.
- You may revoke a durable power of attorney for health care at any time and in any way you are able to communicate the intent to revoke.
- The attorney in fact has legal priority over anyone else, including a guardian, to make health care decisions for a person unless the court finds the attorney in fact is not following the wishes of the principle.
- The attorney in fact has a legal duty to comply with the desires set forth in the durable power of attorney for health care or otherwise made known to the attorney in fact. If those desires are unknown, the duty of the attorney in fact is to act in the best interest of the principle, taking into account the overall medical condition and prognosis.
Where to Get "Advance Directive" Forms
Iowans have two simple ways to make their desires known in advance. It is a good idea to take advantage of these so loved ones will know what to do if someone becomes unable to decide. This will also make legal disputes less likely. Forms for living wills and durable powers of attorney for health care decisions are easy to get. You can ask a lawyer, health care provider, or your local legal aid office. On the Internet, the forms are available on the Iowa Legal Aid Website at www.iowalegalaid.org. Select the "Legal Information and Other Resources for Iowans" box and go to the topic "60+ Elderlaw." Click on the Special Bulletin in the upper right corner to get to the forms or use the shortcuts below.
For a Living Will Form, go to iowalegalaid.org/link.cfm?1603
For a Medical Power of Attorney for Health Care Form, go to
iowalegalaid.org/link.cfm?1604
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