WASHINGTON, September 7, 2014 — Joan River’s recent medical condition required her daughter, Melissa, to make perhaps the most difficult decision of her life. Joan had previously given Melissa a power of attorney, authorizing her to make medical decisions if and when a time came that Joan could not decide for herself. Melissa took Joan off of life support.
With the passing of Joan Rivers, the world lost a superstar. Her daughter’s decision to take her mother off of life support was perhaps the most difficult decision she will ever make. This life or death decision is one that can be forced on anyone, superstar, celebrity, the family next door.
Boxer Hector “Macho” Camacho was shot in the jaw in 2012. He was not going to recover and his family decided to end his life support.
Actress Natasha Richardson’s skiing accident in 2009 effectively ended her life; her family decided to take her off of life support.
A 26 year-old pregnant Michigan woman, Christine Bolden, suffered a brain aneurysm in 2012. Her family kept on her life support for about a month to allow her in-utero twins to more fully develop. The twins were delivered successfully, and Christine was soon thereafter taken off of life support.
Rap-star Usher’s stepson Kile Glover, age 11, died in July, 2012, after he was taken off of life support. Kile had been injured while operating a jet ski on a Georgia lake.
Studies show that most patients who die in intensive care units (ICUs) in the United States do so because life support was withheld or withdrawn. Withholding and withdrawal of life support means various medical interventions are either not given to patients or removed from them with the expectation that the patients will die from their underlying injuries or illnesses.
In the United States, withholding and withdrawing life support is legally justified and comes from the principles of informed consent and informed refusal, both of which originated in the “common law.” These principles hold that treatment may not be initiated without the approval of patients or their surrogates except in emergency situations, and that patients or surrogates may refuse any (or all) medical interventions.
The first case where these concepts were applied involved Karen Ann Quinlan, who in 1975 came home from a party and lapsed into an unconscious state, after ingesting drugs and alcohol. She went into a vegetative state. Her parents wanted her removed from life support equipment, but the New Jersey hospital refused. Ultimately, the New Jersey Supreme Court held that a patient had the right to refuse mechanical ventilation, and that, because she was vegetative and could not exercise that right directly, her parents could act as surrogates for her. She was taken off of life support and died ten years later.
Joan’s passing provides pause for the rest of us to ask “what if” regarding our life’s end.
“Can we talk?” Joan would tell us we have to do so. It is difficult to think about, and even more difficult for some to discuss, but life-ending decisions should be made before life’s end approaches.
Living wills and durable powers of attorney can provide healthcare instructions.
These legal documents set out a person’s wishes : whether to be kept on or off life support in the event such a decision needs to be made.
A “living will” is often referred to as a medical directive or a health care directive, or even a health care power of attorney. It is called a “living will” because it relates more to someone’s living wishes, that is, what they want while alive, as opposed to their dying wishes, or what they want after they pass. If someone becomes incapacitated, that is, they become unable to speak or act, a living will that they prepared previously can do their talking for them. Examples of incapacity are seen often with individuals suffering form Alzheimer’s or other forms of dementia. Accidents and other injuries can render someone incapacitated.
A living will documents a person’s medical preferences in the event that they are incapacitated and unable to act or communicate for themselves. There is no right or wrong answer, or right or wrong provision, about what should be included in a living will, but the document should clarify decisions about making use of medical technology to prolong life. Some people wish to have everything possible done to save them while others do not want to live if their mental capacity and/or independence would be severely diminished. A living will typically covers preferences on issues such as blood transfusions, CPR, use of a respirator, intravenous food and water, and the use of palliative care to reduce pain if the decision is to forgo life-prolonging treatments. It may also identify decisions about being an organ donor.
A durable power of attorney is similar, but designates a family member or a trusted friend and gives that person the “power” or right to make medical decisions for the incapacitated individual. This responsibility is often given to a spouse or adult child, but can be a close friend so desired. This person makes any decisions that are not already covered in the provisions of a living will, or, if no living will exists, it empowers the person to make the ultimate life decision.
The question becomes then, do you want to leave this decision to a relative or a friend? Ask Melissa if she would have preferred that Joan made the decision.
An attorney is not needed to make a living will or a durable power of attorney. Hiring an attorney however will help assure that wishes are honored by the local state courts. There are state specific laws that can invalidate provisions in either of the documents if the provisions are inconsistent with those laws. As an example, some states have laws that prohibit withdrawing life support for pregnant women where the fetus is still viable.
Make your living will, and give someone a durable power of attorney. These are gifts given to your family, so they will not have the struggle Melissa must have faced.
Rest in peace Joan. The world will miss you.
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website.
His new book “Who Will Pay My Auto Accident Bills?, The Most Comprehensive Nationwide Auto Accident Resolution Book, Ever” can be reviewed on http://www.completeaccidentbook.com and can be ordered there, or obtained directly on Amazon: Click here to order
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