If anything positive resulted from the Terri Schiavo case that dominated the news two months ago, Northeast Ohio attorneys say it is the heightened awareness about living wills.
Lawyers agree having a living will in place leaves no doubt as to the wishes of someone in a similar condition as the Florida woman.
"The primary purpose of a living will is to give your doctor and your family an advanced directive in the event you become permanently unconscious or terminally ill and you are unable to communicate for yourself," says Ellen Meehan, an estate-planning attorney with Squire, Sanders & Dempsey in Cleveland.
Ohio law provides specific definitions for both "terminally ill" and "permanently unconscious." The law also requires these conditions be verified by two physicians who confirm death is likely to occur within a relatively short time if life-sustaining treatment is not received.
In addition to the living will, other advance directives in Ohio include health care power of attorney; do not resuscitate; and organ and tissue donation. Health care power of attorney goes hand in hand with a living will.
A living will is an expression of what your wishes are if you are unable to communicate. "Under a living will, you are not asking anybody else to act on your behalf. That is what a health care power of attorney is for," Meehan says.
"You should really have both documents," says Missia Vaselaney, a partner with the Trust & Estate Planning Group at Kahn Kleinman in Cleveland. "While the living will helps in cases where you are unconscious and in the last stages of a terminal illness or have no cerebral cortical function, the health care power of attorney can actually be more helpful because it gives somebody the right to make other decisions for you, too."
Decisions covered by the health care power of attorney include getting a second opinion or moving to a different hospital.
"Without a health care power of attorney, it is the doctor's choice and not the family's," Vaselaney says. "The exception is for the parents of minor children."
Even your spouse has to go to court and be appointed your guardian if he or she disagrees with the doctor about your treatment.
One of Vaselaney's clients, who had recently moved from Florida to Northeast Ohio, experienced this firsthand. Her husband had a heart attack and was taken to an outlying hospital. She wanted her husband moved to another hospital but was refused because the outlying hospital did not have a "partner relationship" with the other hospital, according to Vaselaney.
The wife was told the only way she could get her husband transferred was if she went to court and was appointed guardian of the husband. Unfortunately, there was not enough time to get an emergency guardianship so he was not treated where the wife wanted, according to Vaselaney.
Shortly after this, the couple went to Vaselaney for her help in making sure something like that would never happen again.
Many people don't want to think about retirement, let alone death, but having a living will and a health care power of attorney is recommended for anyone over the age of 18, Vaselaney says.
It is important for young people, even those who are single and live independent from their parents, to have one, she says.
Your family and doctor must, by law, obey your wishes of no life-sustaining support if one of the two legal conditions is present and you can't speak for yourself. A living will does not leave the decision up to the family.
Family members also forget, in the midst of a medical emergency, that if a person has a living will and health care power of attorney but is able to make his or her own medical decisions, the person has the right to do whatever he or she wants to do even if refusing treatment would result in that person becoming terminal. An adult child cannot force his or her parent to seek treatment.
For those who don't want to sign a living will because they do want all possible measures taken to sustain life, it is still important to discuss your intentions with a spouse and family members.
The easiest way to obtain a living will, as well as health care power of attorney, is to download the forms from the Internet. The standard form in Ohio is sponsored by several health care and legal entities including the Ohio Hospice & Palliative Care Organization, Ohio State Medical Association, Ohio Hospital Association, Ohio Osteopathic Association and the Ohio State Bar Association. (Go to www.ohpco.org to download the forms.)
Instructions for filling out the forms are easy to understand, Vaselaney says. No lawyer is needed, but the forms should be notarized or witnessed by two people unrelated to you.
Using the pre-printed form with the logos of the sponsoring organizations is actually better than having an attorney create a separate document, even if the wording is exactly the same.
"Hospitals are less likely to accept forms without the logos because they don't know if someone altered even one sentence and may want it reviewed by their legal department," Vaselaney says. "You want someone to start listening right away."
Copies of the documents should be given to family members and physicians to include in their medical records.
"I also recommend you give a copy to your priest, rabbi or minister so everyone knows what your wishes are," says Meehan, of Squire, Sanders & Dempsey.
Keep a signed original in a safe, accessible place - not a safe-deposit box in a bank - and make sure family members know where that place is. You do not need to bring a copy of your living will with you to the hospital, although you will be asked if one exists when you are admitted. Have a signed original on file with your attorney in case of an emergency.
"I had a client who had a stroke in Maui; the whole family was there on vacation for an anniversary celebration," Vaselaney says. "The originals were at home but we also had an original, and I FedExed mine to them."
If you are a business owner, you can designate what happens to your business in a life-threatening emergency in the same way you can create a living will to protect yourself.
Generally, directives are spelled out in a buy-sell agreement created at the onset of a business to protect the business from the death, disability or departure of an owner or key employee, says Donna Flammang, a partner with Taft, Stettinius & Hollister in Cleveland. "It is important to re-evaluate these designations each year as business issues change," she says.
One can designate a general power of attorney to make business, legal and financial decisions on behalf of the business.
Another option is to have shares of the business held in a revocable living trust that names a "successor trustee" (child, friend, partner or bank) to take over and follow the trustor's instructions, which are set forth in the trust, upon his or her death or incapacitation.
Whether it's your life or the life of your business, the Schiavo case is the most prominent example of why documenting advanced directives is so critical.
"Right now hospitals are afraid of malpractice," Vaselaney says. "If there is any dissension within the family, [without a living will] the hospital will keep someone alive, and it may be a situation where that person would not want to be kept alive."