TERRY SCHIAVO AND THE CONTROVERSY OVER THE
WITHDRAWAL OF LIFE SUSTAINING TREATMENT
By Carol Grob, Cullen Weston Pines & Bach LLP

Earlier this year, months before Hurricane Katrina commanded all headlines, the inescapable news story was the death of a 41-year-old woman in Florida named Terry Schiavo. In 1990, Ms. Schiavo suffered a heart attack that left her in a persistent vegetative state – a complete, irreversible loss of all functions of her cerebral cortex. To stay alive, Ms. Schiavo was administered artificial nutrition and hydration.

In 2000, Ms. Schiavo’s husband and court-appointed guardian of ten years petitioned a Florida court for authorization to remove her feeding tube. Five years later, after myriad court proceedings, anguishing news coverage and what appeared to be a great deal of Schiavo family hostility, Mr. Schiavo’s request that Ms. Schiavo’s feeding tube be removed was carried out and she died.

Two months ago, the Wisconsin State Journal reported the case of Staff Sergeant Chad Simon, a 32-year-old Marine from Monona, Wisconsin, and father to a six-year-old son. Sergeant Simon was critically wounded by a roadside bomb in Iraq. He was returned to Wisconsin for medical care near the end of 2004. In mid-July, 2005, his doctors determined that he would not recover. Sgt. Simon’s wife asked for court authorization to remove her husband’s feeding tube. Her petition was promptly granted. Sgt. Simon was buried with full military honors in early August.

Why did Terry Schiavo’s guardian’s request to remove her feeding tube take five years to decide and create a firestorm of controversy and anguish, while Chad Simon’s guardian’s same request was respected in only a few days?

Before leaving for Iraq, Sgt. Simon had prepared a health care power of attorney which clearly expressed his wishes that his wife make his health care decisions for him if he could not do so for himself. Terry Schiavo never clearly expressed her wishes about end-of-life care or prolonging her life with artificial nutrition or hydration, and she had not appointed a health care power of attorney.

The Terry Schiavo case could happen in Wisconsin. If you do not clearly state, while healthy, your wishes as to the care you should receive in the event you become incapacitated, if you do become incapacitated a court will appoint a guardian for you and that guardian will be faced with the agonizing task of trying to determine what you would have wanted. Your guardian will face an even more difficult task if you never discussed your wishes with your loved ones, or if others close to you hold values or beliefs that are different from what your guardian believes are yours.

By completing a health care power of attorney you can choose your own health care decision-maker instead of having one imposed on you in a guardianship proceeding. You can choose the person who understands what you would want and who could advocate effectively for the medical care you want.

To learn more about a health care power of attorney visit the Wisconsin Department of Health and Family Services’ website at: http://dhfs.wisconsin.gov/guide/legal. In addition to information and forms, this website will tell you about advance medical directives. Of course, a lawyer can also help you with a living will and a health care power of attorney.

And don’t just stop there. Health care powers of attorney are based on the assumption that you have talked to your designated power of attorney about your wishes and that your designee knows what you would have wanted. To give credibility to your designee at a time when they will be under duress and will need to be credible, include other family members or friends in your conversation about your wishes. Consider a variety of medical situations. Be as consistent as possible in what you state about your wishes when you talk to more than one person. It is not always easy to have this kind of conversation. But doing so will ease the burden for your family and friends.