Cook On Concord
The Terry Schiavo matter raised many timely and important issues relevant to New Hampshire as well as the rest of the nation.
First, the extraordinary involvement in the matter by the state courts, federal courts, Congress, the president and then, finally, the federal courts again, pointed out a couple of things.
One, matters of life and death are extremely controversial, involve great passions and significant moral issues and, as such, can become political. Many observers, divorcing the particulars of the situation from the governmental process, were struck by the curious involvement of Congress in a matter that has been treated either as a private family matter or a state matter in the past.
To have Congress return to Washington on a weekend to pass legislation designed to allow a remedy in the federal courts for one individual situation, and to have the president fly from Texas to Washington to sign it, shocked some and encouraged others. All recognized it to be unique. Indeed, when the Congress was established, communications and transportation would not have allowed it to consider such matters, whether they are appropriate for legislative action on the federal level, or not.
Another — the involvement of the courts on the one hand and the legislatures on the other — highlighted the difference between judicial and political remedies. The courts almost completely sided with those who thought removing the feeding tube from Ms. Schiavo was appropriate and consistent with a medical diagnosis. The legislative actions, whether state or federal, almost universally sided with her parents and their desire to keep her alive, deemed by legislators to be the politically and numerically more popular position.
The entire matter focused attention on several things about New Hampshire law and resulted in many articles and broadcast reports on the need people have to sign “advance directives.” These documents, known in New Hampshire as “durable powers of attorney for health care” and “living wills,” are provided in our statutes, which even include the forms. First enacted in the early 1990s under the leadership of the late Sen. Susan McLane, the documents allow people to set forth their wishes for care, both during life and at the end of life. The durable power of attorney for health care enables a person to select a surrogate decision-maker if the person signing the document is deemed incompetent to make medical decisions in the opinion of two doctors. The document addresses issues such as extraordinary life support being provided or withdrawn as well as the provision of “artificial nutrition and hydration” through feeding and hydrating tubes, like those Terry Schiavo had.
Schiavo was not being kept alive by a heart-lung machine, dialysis machine or other mechanical means — her bodily functions were working. However, unconscious, she did not have the capacity to feed herself, and therefore artificial nutrition and hydration had to be provided. If it were not provided, she would die. New Hampshire’s forms address that very subject.
Many people presume that when they get married, their spouse automatically becomes their medical surrogate. This is not the case, and only a durable power of attorney for health care can name someone and give that person the authority to act for a principal unable to make his or her own decisions. However, anyone disagreeing with the decision of the surrogate named in a durable power of attorney for health care can seek to have a guardianship over the patient established in court or can challenge the proposed action.
Living wills back up durable powers of attorney for health care by expressing a person’s wishes about extreme life support measures and have the same question about artificial nutrition and hydration. However, they do not name a surrogate but merely memorialize a person’s wishes for care at the end of life. If someone has both documents, the durable power of attorney for health care controls if the surrogate or substitute surrogate is available.
This legislative session, a measure to modernize the documents, includes provisions to make signing them easier by eliminating the requirement for a notary. It also standardizes some language thought to be obscure in the original version.
At this writing, both houses are still considering the draft legislation, which also changes the law on “do not resuscitate” orders, allowing them to be more portable if a patient moves from hospital to nursing home or institution to institution.
The Schiavo case points out many important moral, ethical, legal and political questions. Closer to home, however, it reminds everyone, including 25-year-old newlyweds who do not think about end-of-life matters that it is a good idea to have advance directives signed by every competent adult.
Brad Cook is a partner in the Manchester law firm of Sheehan Phinney Bass + Green and heads its government relations and estate planning groups.