What does Louisiana law say about ‘living wills’?
March 24, 2015 by Baptist Message
Terry Schiavo died March 31, the end of a long 15-year saga that involved physicians, judges, politicians and social pundits – and captured the attention of a nation.
For weeks and weeks, controversy and debate swirled about whether a gastric feeding tube should be removed from Schiavo, effectively allowing her to die.
She had been in a persistent vegetative state for years, following an incident in 1990 that resulted in brain damage. In one sense, her situation provided an education for the nation, many of whom equated “persistent vegetative state” with “comatose” and imagined a lifeless, still form lying day after day in bed.
Instead, videos showed a somewhat awake Schiavo – and reports indicated she responded to some stimuli.
As the Internet encyclopedia Wikipedia notes: “A persistent vegetative state (PVS) … is a condition of patients with severe brain damage in whom coma has progressed to a state of wakefulness without detectable awareness. The term was coined (by neurosurgeons) in 1972 … to describe a syndrome that seemed to have been made possible by medicine’s increased capacities to keep patients’ bodies alive.
“Patients in a persistent vegetative state are usually considered to be unconscious and unaware,” the online encyclopedia notes. “They may experience sleep-wake cycles or be in a state of chronic wakefulness. They may exhibit some behaviors that can be construed as arising from partial consciousness, such as grinding their teeth, swallowing, smiling, shedding tears, grunting, moaning, or screaming without any apparent external stimulus. They are unresponsive to external stimuli, except, possibly, pain stimuli.
“Few people have been reported to recover from PVS.
Some authorities hold that PVS is, in fact, irreversible, and that the reportedly-recovered patients were not suffering from true PVS.”
The encyclopedia entry goes on to note that a persistent vegetative state is not recognized as death in the legal system.
Thus, the dilemma – should a person in that state be allowed to live or to die?
And the question – should existence in such a state be defined as living?
Those questions have become personal for many in light of the Schiavo case, especially as they consider how they would wish to be treated in such a scenario.
For many, the consideration has led to an increased interest in “living wills,” which spell out a person’s medical wishes in such situations.
But what are living wills – and how can persons prepare one that will be honored?
In Louisiana, a living will law has established a set form and a state registry to record such declarations. The state law declares “that all persons have the fundamental right to control the decisions relating to their own medical care, including the decision to have life-sustaining procedures withheld or withdrawn in instances where such persons are diagnosed as having a terminal and irreversible condition.”
The Louisiana law stipulates that a terminal and irreversible condition “means a continual profound comatose state with no reasonable chance of recovery or a condition caused by injury, disease or illness, which, within reasonable medical judgment, would produce death and for which the application of life-sustaining procedures would serve only to postpone the moment of death.”
The law then allows for persons 18 or older to make written declarations –with two witnesses – “directing the withholding or withdrawal of life-sustaining procedures in the event such person should have a terminal or irreversible condition.”
However, such a declaration should not be drafted in any language, said Mike Tudor, an Alexandria attorney who has considerable experience with living wills.
“All the attorneys I know use the form prescribed by the legislature,” Tudor said.
That language is set forth in the law passed by the state and may be downloaded online.
Once a living will is drafted and properly prepared, it may be filed with the secretary of state for a $20 fee. When it is, a person receives a laminated wallet identification card and an engraved “Do Not Resuscitate” bracelet.
The office then lists the person on the living will registry, which can be viewed online. It also provides copies of a person’s living will – upon request – to attending physicians or health care facilities.
And that is it, right?
Well, not so fast, Tudor said.
In addition to a living will – and equally important – is a power of attorney document, he explained. It is designed to designate particular people with the authority to enforce or invoke one’s living will.
The scenario is simple.
A person drafts a living will and even has it registered perhaps.
However, there may be resistance in enforcing by hospitals and physicians wary of lawsuits. Also, some family members or others may have been unaware of the existence of the living will and reluctant to heed it.
Thus, it often is necessary for a person with the “power of attorney” to be present to show that he or she has the authority to make the medical decisions for an individual and to enforce the living will, Tudor noted. “This is not theoretical,” he said. “This happens all the time.”
Despite the rhetoric of some, Tudor said it has been his experience that hospitals are very hesitant not to engage in life-sustaining measures. Quite simply, they fear legal action if they do not, he said.
“They’re very cautious and conservative,” he said.
“They’re going to do all they can unless you’re there with a living will.”
In the wake of the Schiavo case, some have argued the need for a “will to live,” a statement of what they wish done medically in certain cases. However, Tudor said most cases he has encountered involved people who wished to stipulate what they did not want done – such as life-sustaining measures in certain situations.
Unlike the living will declaration, a power of attorney can contain any language, Tudor noted. It even can address various aspects of a person’s life – such as finances, etc. However, it needs to have medical information included.
The power of attorney also can go beyond the living will and address specific medical situations and what a person would wish done – or not done, Tudor noted. For instance, it could stipulate that a feeding tube should be used until a particular type of specialist could review the case and make an evaluation, he noted. It also can designate several persons – in order – to make decisions. In essence, a power of attorney allows a person to spell out wishes specifically – and to ensure there will be individuals with the authority to enforce those.
Once documents are prepared and notarized by an attorney, Tudor suggests having copies filed in various locations – with the attorney, with the secretary of state office, with key individuals.
He also reminded persons that they may change the documents at a later date. Indeed, a living will even can be revoked at the secretary of state office for $5.
However, when asked if all Louisiana adults should initially prepare a living will, Tudor is unhesitating.
“Yes,” he emphasized. “Absolutely do this. And in saying that, I am equally as strong in urging a power of attorney as well as a living will.”
(To review that legal statute related to living wills, visit http://biotech.law.lsu.edu/la/consent/la-living-will.htm.
Information about living wills in Louisiana may be obtained:
Online at the secretary of state’s Web site atwww.sos.louisiana.gov. Choose “Publications/Living Wills” category at the site, then “Living Wills Declarations” on the right-hand side of the second page.
By calling 225-922-0309.
By e-mailing the secretary of state office at publications@sos.louisiana.gov.
By writing: Louisiana Secretary of State, Publications Division, P. O. Box 94125, Baton Rouge, LA 70804-9125.)
