March 31, 2016 will mark the eleventh anniversary of the death of Terri Schiavo, the 41-year-old who succumbed after her feeding tube was removed as part of a very public legal battle in Florida between her husband and parents.
As you may recall, Terri Schiavo was in a coma for nearly 15 years after she suffered cardiac arrest and sustained a brain injury. Her husband, Michael Schiavo, alleged that his wife would not want to live in her incapacitated state; she had no written instructions in place.
Her parents, on the other hand, suspected that Michael had something to do with Terri’s collapse and argued that she valued life and would have chosen to be sustained. As you also recall, the Florida Legislature, then-Gov. Jeb Bush, and then Congress and President George W. Bush all intervened in this legal battle. While no one will ever know Terri’s desires, we can safely assume that she would not have wanted the acrimony that her condition created between her husband and parents.
The Terri Schiavo story highlights the critical need for clear instructions as to health care when the patient is unable to make those decisions for him or herself. Most polls still show that only a minimum of respondents say a doctor should always try to save a patient’s life, while a majority believe that patients should sometimes be allowed to die without life sustaining measures. And a majority also say they would tell their doctor to end treatment if they were in great pain with no hope of improvement.
The same polls show that, surprisingly,only a slim majority of patients had discussed end-of-life care with a spouse, whereas a minority of those over 65, had done so with their children.It is estimated that less than one third of Americans have taken the more legally enforceable measure of appointing a health care proxy to act on their behalf if they cannot act for themselves (known as Advance Health Care Directives in California).
These polls are particularly disturbing given that between 2016 and 2040, the United States will experience considerable growth in its older population. In 2040, the population aged 65 and over is projected to be 79.7 million, almost double its estimated population of 45.1 million in 2016. The baby boomers are largely responsible for this increase in the older population, as they began turning 65 in 2011. By 2050, the surviving baby boomers will be over the age of 85. And the foregoing doesn’t even address the corresponding increase in the percentage of elders with Alzheimer’s Disease and Dimentia or other disabling conditions that underscore the importance of appointing a health care agent who can make important decisions for the elder.
Given that we are all likely to suffer from some form of disability during our lifetimes it is critical that we think through these issues carefully and that we prepare the legal documents necessary to effectuate our desires – so that our desires will be carried out even if we are unable to express them ourselves. This is one area where the help of counsel who focuses on these issues is especially critical.