What I Learned from Schiavo

By the time I retired as a lawyer specializing in estate planning and conservatorships, I must have drafted at least a thousand durable powers of attorney for health care. Because of their adaptability to unforeseeable contingencies, DPAHCs are the preferred form of advance health care directive for most Americans. They work by identifying someone—an "agent"—to apply general instructions to circumstances in which the "principal" can no longer make particular wishes known.

As a disproportionate number of my clients, while still legally competent, were already suffering from terminal illnesses that typically end in a significant period of incapacity, both the clients and I had every reason to explore thoroughly the range of available options in wording their advance health care directives. I had ample reason to be careful in my own DPAHC, too, as I've had a couple of close encounters with death in recent years. But my health care providers helped me to dodge the bullets and live (quite happily, as it turns out) to tell about them.

First, I want to offer five observations about how DPAHCs work. I believe most experienced estate planners and even most of my clients, if they thought about the matter, would endorse these thoughts.

1. Although most people initially think otherwise, the law in most states does not allow an advance health care directive to tie one's hands. If the patient has a change of heart about the subjects covered by the written directive, the patient's revised oral or even gestural instructions will trump the written document (assuming the patient is still able to make his or her wishes known, however awkwardly and by whatever means, and in which those wishes "make some kind of intelligible sense" to the person's health care providers).

Further, that's a good safeguard, in most people's judgment. It should reassure clients who, in the course of preparing an advance health care directive, are asked to make prejudgments about a lot of remote contingencies that they find difficult or painful even to contemplate. To be sure, that safeguard would not help a patient who needed to communicate a change of heart about health care services but was too incapacitated to do so by any means whatsoever. A few bystanders to the Theresa Schiavo saga believed that such was the case with her when her proxy or the courts considered the question, "If she could communicate, what would she say, after being in a 'vegetative state' for more than twelve years, about whether her feeding through a gastrostomy tube should be stopped or continued?" But surely it must be an exceptional case in which a patient who has been wholly unresponsive for an extended period of time continues to have an actively conscious interior life. And in my opinion, asking agents, loved ones, or courts to obsess on that remote possibility, as on the possibility of Lazarus's rising from the dead, is to torture already griefstricken bystanders in an unconscionable manner.

2. People selecting agents in DPAHCs are well advised to choose individuals whose authority is ranked rather than paired ("A, then B," rather than "both A and B, unless one of them has completely dropped out of the picture, in which case either A or B"). Ranking will avoid the risk of deadlock in quickly moving circumstances.

3. Equally important, the agents named in a DPAHC should be polite and credible to health care providers but firmly insistent about their mission. The simple facts are these: hospitals are busy places, doctors are busy professionals, and incapacitated patients (the only kinds covered by advanced health directives) are often quite sick. So the physician will usually do what he or she deems best (or believes will least expose the physician to legal liability) unless the patient's agent is steadily insistent on some other "credible" course of action that evidently is supported by the language of the advance health care directive. And the fact that these realities do not track the law governing DPAHCs rarely carries much weight. When push comes to shove, challenging health care providers' actions in the...