The Terri Schiavo case presented an array of challenging moral, philosophical and legal questions as it moved through the American judicial system.

Without question, these are difficult issues. No one wants to envision a day in which they, their spouse, or a parent is in such a medical condition that they cannot make decisions for themselves. But whether you are old or young, healthy or ill, it is never too early to start thinking about who you want making decisions for you in an emergency, how you would want key health care decisions handled, and what your basic desires are.

I. Incapacity Planning

Incapacity PlanningWhat happened in the Terri Schiavo case?
Terri, age 27, suffered a cardiac arrest in February 1990. She was rushed to the hospital. She never regained consciousness. Since 1990, Terri lived in nursing homes with constant care. She was fed and hydrated by tubes. She had numerous health problems, but none had been life threatening.

The court concluded that Terri was in a permanent or persistent vegetative state. It is important to understand that a persistent vegetative state is not simply a coma. She was not asleep. She had cycles of apparent wakefulness and apparent sleep without any cognition or awareness.

What was the legal issue?
Like many young people without children, Terri Schiavo had not prepared a will, much less a living will. As the court said, it is understandable why a parent who had raised and nurtured a daughter from birth would hold out hope that her health would improve over time. In fact, if Terri was our own daughter, we would hold on to such faith, too, the court added. On the other hand, Michael Schiavo, Terri’s husband, believed that Terri would not want to be kept alive artificially in her current state of health.
The issue before the court was this: what would Terri want? What were her wishes?

How can this be avoided?
Had Terri Schiavo prepared advance health care directives outlining who she wanted making decisions on her behalf and how she wanted to be cared for, the battle over her care could have been avoided. Unfortunately, she left no written directions, leaving her parents and husband to argue her fate in the courts. Even more unfortunate is the fact that she has plenty of company.

According to a study published in 2002, four out of five Americans do not have a living will or any other advance directive to help their families make decisions for them if they become incapacitated. As a result, too many families are forced to make wrenching decisions about loved ones without proper guidance.

Advance directives, if done right, accomplish four things:
1. Ensure that the person you want to speak for you has the legal authority to do so.
2. Help ensure that your wishes about your health care are known and respected.
3. Avoid unnecessary, intrusive, and costly medical treatment at the point you not longer want it.
4. Reduce the suffering experienced by your loved ones, because they will have your guidance.
An end-of-life advance directive in the form of a living will would have clearly let the family members know Mrs.

Schiavo’s wishes.

What is a living will?
A living will contains specific instructions about what you want done regarding withholding or withdrawing life-prolonging procedures in the event that you have a terminal condition, an end-stage condition, or are in a persistent vegetative state. A living will should not be confused with a legal will, described later.

Can you describe each condition briefly?
Terminal condition: A condition caused by injury, disease or illness from which there is no reasonable medical probability of recovery and which, without treatment, can be expected to cause death.
End stage condition: An irreversible condition caused by injury, disease or illness that has resulted in progressively severe and permanent deterioration, for which, to a reasonable degree of medical probability, treatment would be ineffective.
Persistent vegetative state: Permanent and irreversible condition of unconsciousness in which there is an absence of voluntary action or cognitive behavior of any kind, with an inability to communicate or interact purposefully with the environment.

What are life prolonging procedures?
Any medical procedure, treatment or intervention which sustains, restores or supplants a spontaneous vital function. The following may be considered such interventions:
 Artificial nutrition and hydration (providing food and water through tubes)
 Placement of ventilator or other mechanical devices
 Surgical procedures, blood transfusion and intensive care unit placement
 Chemotherapy or radiation therapy, unless there is substantial medical probability that the condition will materially improve

Once I prepare a living will, I am done, right?
No. Declaration of living will is the beginning, not the end of this process. Broadly speaking, incapacity planning involves planning for (1) health care and (2) managing your personal/business affairs in case you are incapacitated due to injury or illness.

I thought living will took care of health care part of incapacity planning?
Living will addresses only life prolonging aspect of incapacity planning. Advance directives address all remaining health care issues arising from incapacity. Advance directives are a set of documents/instructions that you have prepared (needless to say, in advance), that serve to convey your wishes regarding your medical care in the event that you are not able to give the directions yourself.

How can I address the remaining health care issues?
A health care surrogate designation can be used to appoint a surrogate (any competent adult expressly designated by you to make health care decisions for you if you are incapacitated). The surrogate also signs “informed consent” documents authorizing the medical personnel to initiate treatment. Living will and health care surrogate designation are part of a group of documents called “advance directives”.

Basically, advance directives allow me to express my preferences concerning medical treatment. Wouldn’t the physician do what is in my best interest anyway?
Physicians prefer advance directives because they provide a written expression from you as to your medical care and designate the person that the physician should consult concerning the decisions about your medical care. Rather than the physician having to obtain a consensus answer (see earlier discussion on Terri Schiavo) from your family members as to your treatment, the physician knows your preferences and knows who will make decisions when you cannot do so.

Advance directives provide your expressed wishes, rather than making the family guess your desires. Making your wishes known in advance prevents family members from making such choices at what is likely one of the most stressful times in their lives. In addition, providing such information and designating a surrogate means that the physician knows whose direction is to be followed in the event that your family members disagree as to what medical treatment you would want, as was the case with Mrs. Schiavo.

What about financial decision-making if I am incapacitated?
That’s the second part of incapacity planning. A durable power of attorney (DPOA) can be used for this purpose.

What are the functions of a DPOA?
A DPOA is a legal document delegating authority from one person to another. The maker of DPOA grants the right to act on maker’s behalf under certain conditions. A DPOA can be very broad or can be narrowly tailored for specific situations. Thus, a DPOA is an important and powerful document, as it can give the “agent” or “attorney-in-fact” the right to do almost any legal act that the maker of the DPOA could do, including sell a car, home or other property, sign a contract, handle financial transactions or sign legal documents for the maker. A DPOA can also grant the authority for making health care decisions as an advance directive.

What about organ donation?
An organ donation form is an advance directive. It allows donating your organs to save another life after you have died (an anatomical gift).

Where should I keep my advance directives?
Advance directives serve as your “voice” and hence, they should be accessible. In addition, your surrogate, family and physician should have a copy. It is a good idea to bring a copy with you each time you are admitted to a hospital or ask someone to bring it for you.

What do you mean by “life planning”?
We are or should be, in a perpetual planning mode during our lifetime. Some of the planning activities are:
 Career planning: Our education and employment (or business ownership) including advancement, career change as well as compensation and benefits calculations at every stage of career planning.
 Retirement planning: Projecting income and expenses when full time employment ends and devising the means of how those expenses shall be paid for.
 Tax planning: Legally minimizing payment of (primarily) income taxes.
 Financial Planning: Developing and implementing sound investment strategies in order to preserve and enhance our wealth.

More often than not, we ignore the life planning, which consists of:
1. Planning for incapacity when we are alive.
2. Planning for preservation as well as appropriate distribution of our real and personal property upon death.
Unfortunately, some of us pay a heavy price for procrastinating on life planning.
Sounds like I am not done when I complete my incapacity planning, either�..
Correct. The preservation and distribution of your real and personal property (including bank accounts, stocks etc.) involves estate planning.

II. Estate Planning

What are the basics of estate planning?
Estate planning is the accumulation, conservation and distribution of wealth. In majority of cases, incapacity planning is addressed in conjunction with and as a part of the estate planning process. Generally, a will is the starting document in this process.

A will provides for distribution of real and personal property owned by you at the time of your death in any matter you choose (subject to state laws that may prevent disinheriting spouse and in some cases, children). Your will can not, however, govern the disposition of properties that pass outside the probate estate (such as certain joint property, life insurance and certain other contract based arrangements). In addition, you can designate a guardian for your minor child in your will.

What are other estate planning vehicles?
Depending on your situation, a revocable trust may be an appropriate dominant estate planning strategy, rather than just a will.

Why is estate planning such an important part of life planning?
A comprehensive estate planning process anticipates and plans for continuity of your family unit as well as your business activities after your death. After all, you want your family and business to continue growing and benefiting from your legacy. In other words, you want to implement family succession planning and business succession planning to preserve and enhance your wealth in order to continue supporting the people that you care about deeply.
The “out of sight, out of mind” mentality by avoiding estate planning may have adverse impact on those that you worry about the most- history is full of examples of well-known people who did not have the foresight to engage in estate planning, with often disastrous results.

How does estate tax compare to income tax?
In 2003, the maximum estate tax (frequently called “death” tax) was 49%. It changes from year to year and there are exemptions which also change. The future of estate tax is unknown- it ranges from total elimination to an increase from current rate by lowering the exemption amounts. Estate planning process takes estate tax into consideration and implements strategies to minimize it.

But, I am not wealthy- why should I worry about estate planning?
Let’s start with the basic question: how do you define “wealth”? If you think you have to be a millionaire in order to be considered a person of wealth, think again. The best way to define “wealth” is to look at it from the perspective of Internal Revenue Service (IRS). The fundamental inquiry should be: did you pay taxes last year? If you did, than according to IRS, you are wealthy. Undoubtedly, you spend significant time (and money in many cases) every year to minimize your income tax. Isn’t it logical to spend at least some time to minimize “death” taxes and plan to support your family and business interests upon your incapacity or death?

Are there any other elements to estate planning?
Many view asset protection as part of this process. We live in a world of financial and legal uncertainty. Any person in today’s litigious society is subject to financial risk resulting from lawsuits based on a variety of theories of liability:
 Professional malpractice
 Business liability
 Landlord liability
 Automobile liability (in excess of insurance coverage)
 Household liability (issues range from dog bites to swimming pool accidents or worse case scenario, death)
Asset protection planning involves protecting a person’s assets from future potential creditors to the extent legally possible. It is structured to deter a future creditor to pursue litigation as the remedy.

III. Conclusion

The Terri Schiavo case is an important reminder to give a high priority to designing the appropriate “life plan”. Frequently, this involves a detailed discussion between the lawyer and the family as well as identifying answers to often difficult questions. On the other hand, in many instances, the process is straightforward and strategies to be implemented are obvious. The case ended with courts ruling that Terri would not want to be kept alive artificially. It shows that avoiding life planning may not be a wise option.**

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