Why you need a Living Will

By Sharon Frankenberg,
Attorney at Law

Many of us remember the case of Terri Schiavo, a 26-year-old married woman living in Florida who collapsed on Feb. 25, 1990.  She had lost consciousness for an unknown reason and spent the final 15 years of her life in a persistent vegetative state.  Doctors determined that she was not capable of thought or emotion.  She was able to breathe on her own but required a feeding tube to survive.

Her husband wanted the feeding tube removed and insisted that Terri would not have wanted to be kept alive that way.  Her parents disagreed with the diagnosis that she would never recover.  Her parents went to court to keep her feeding tube in place.  The Florida courts sided with her husband’s decision to have the feeding tube removed.  In 2003, the Florida state legislature passed a law (known as “Terri’s Law”) giving the then Governor Jeb Bush the authority to prevent removal of the feeding tube.  The Florida Supreme Court declared Terri’s Law unconstitutional. By now the heartbreaking story of Terri Schiavo had made the national news.  A videotape of her in her hospital bed was circulated and viewed on television repeatedly.  Senate majority leader at the time, Bill Frist weighed in with his declaration that it was clear to him based upon viewing this videotape that Terri Schiavo responded to external stimuli.  Was Terri still in there somewhere?  Could she still recover?  The U.S. Congress with the approval of President George W. Bush passed legislation transferring jurisdiction of the Schiavo case to federal court. Ultimately, the federal courts ruled to enforce the decision of the state court on a matter governed by state law.  With all legal battles over, her feeding tube was removed and she died in hospice care on March 31, 2005.  We will never know for sure what Terri Schiavo would have wanted.

The best way to make sure that this kind of tragedy is avoided is to give written instructions on what you would want done under these types of circumstances.  Tennessee has a statute (Tenn. Code Annotated Section 32-11-101 et seq.) which is known as the Tennessee Right to Natural Death Act.  “The general assembly declares it to be the law of the state of Tennessee that every person has the fundamental and inherent right to die naturally with as much dignity as circumstances permit and to accept, refuse, withdraw from, or otherwise control decisions relating to the rendering of the person’s own medical care, specifically including palliative care and the use of extraordinary procedures and  treatment.”  The statute provides that this may be done by a written declaration called a living will.

In a living will, you declare that if you have a terminal medical condition with no reasonable medical expectation of recovery and which, as a medical probability, will result in your death, you wish that medical care be withheld or withdrawn.  You also make decisions about if or when to withhold artificially provided food, water or other nourishment or fluids to you and whether you wish to donate any of your organs or tissues for transplantation.  The living will must be properly signed and witnessed.  If you have a living will, you should make sure that you give it to your attending physician so that they may copy it and make it a part of your medical record.  It is very common for hospital staff to request a copy of your living will before you undergo medical procedures including surgery.  Having your wishes made known in writing is the best way to ensure that what you want is done.  Sharon Frankenberg is an experienced attorney licensed in Tennessee since 1988. Her office number in Knoxville is (865)539-2100.

 

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