Living will in spotlight

By Se Young Lee

Most college students do not consider the possibility of becoming permanently incapacitated. But after the story of Terri Schiavo became a national controversy, some University students are beginning to see differently.

Terri Schiavo, 41, spent the last 15 years of her life in a permanently vegetative state after suffering a heart attack that severely damaged her brain. Her life ended on March 31 after her feeding tube was removed in accordance to the court ruling after Michael Schiavo, her husband and legal surrogate, successfully argued that Terri Schiavo would not have wanted to be sustained by a feeding tube before 19 different judges, despite strong objection from her family.

Thomas Betz, director of University’s Student Legal Services, said several students have called this office to ask what options are available to ensure that their wishes are carried out if they become permanently incapacitated.

Betz said the Schiavo case would not have created as much controversy had she prepared an advance directive – a legal document instructing what she wants to be done once she is in a terminal state or permanently incapacitated. But because no such directives existed, the Florida courts appointed Michael Schiavo as her caretaker, in accordance with the state’s surrogacy law.

“You don’t think when you’re under 30, ‘Gee, I can die,'” Betz said. “What seems to be missing (from the news coverage of the case) is the objective lesson. You can decide things in advance so you don’t have to go through this mess.”

Rick Kaplan, a professor of the University’s College of Law, said the major cases in surrogacy have involved younger people, particularly young women.

“They’re the ones that are healthy enough to have the issue come up,” Kaplan said, explaining that their bodies are more likely to survive longer while incapacitated than the elderly.

Betz, who is one of the three attorneys working for Student Legal Services, said there are two types of advanced directives: a living will and the health care power of attorney.

Kaplan said that, according to the Illinois Living Will Act, a living will is triggered when a patient goes into a terminal condition that is defined as “an incurable and irreversible condition, which is such that death is imminent and the application of death-delaying procedures serves only to prolong the dying process.”

“(A living will’s) sole function is to terminate death-delaying procedures,” Kaplan said. “The only time a living will is relevant is when a person can’t understand what’s going on or can’t communicate.”

In contrast, the power of health care attorney, which became recognized in Illinois in 1987, designates an agent to make the proper medical arrangements when the drafter of the document is incapacitated. However, Illinois allows drafters to ask for the maximum amount of care that can be provided by signing their initials next to one of the three statements listed.

“(Power of attorney for health care) can be used to say, ‘Hey, I want it all. I don’t care what the costs or the chances are. Bring it on,'” Kaplan said.

But Kaplan cautioned that, because the person designated as the agent is not legally bound to accept the responsibility, it is a good idea to name an alternate agent.

If there are no advance directives for a permanently incapacitated patient, the Illinois courts appoint a surrogate based on the eight hierarchical categories specified by the Health Care Surrogacy Act to ensure that somebody will be making the decisions for the patient. Kaplan said the parents often end up becoming the surrogate for college students because they are not yet married and are unlikely to have a child who is a legal adult.

Betz said this could create a significant problem for homosexual couples because a homosexual partner would be considered at most a best friend, which is the seventh category to be considered for surrogacy. Kaplan said it would be the same for unmarried heterosexual couples.

“(Same-sex couples) are the ones who really need (the health care power of attorney),” Kaplan said. “They’re in a relationship that’s not sanctified by marriage.”

Betz said students can obtain the forms for an advance directive through the Illinois Department of Public Health’s Web site or at the Student Legal Services office in Room 324 of the Illini Union.

“Students should feel free to come and set up an appointment,” Betz said.

But Imam Mujahid Al-Fayadh of the Central Illinois Mosque and Islamic Center said nobody has the right to compose a living will.

“My body and my soul is not mine; it is God’s,” Al-Fayadh said. “I have no authority over my body or my soul. Your body is owned by God.”

Al-Fayadh, whose father once went into a coma for eight months after a car accident, also said a surrogate should not choose to take away food or water from a patient, regardless of his or her condition.

“As long as she’s surviving and as long as people can support her, she has the right to survive until she dies because of a different reason (than the brain damage),” he said, taking the example of Terri Schiavo. “It is inhumane. The government should bear the financial and moral responsibility and care for such patients.”

While the U.S. Congress passed a resolution 10 days before Terri Schiavo’s death to prolong her life with a feeding tube, Kaplan said the waving of the “federal legislative wand” did nothing but delay the inevitable. Federal courts also ruled in favor of Michael Schiavo.

“What all (the resolution) did was to say that the federal court can hear this case,” Kaplan said. “The polls show that seven out of ten Americans thought that it was an awful charade. It’s hard to see any good it did for the family.”

Betz said because of the Terri Schiavo case, he is concerned about a possible chilling effect on future surrogates, who may no longer want to take on surrogacy in fear of public criticisms.

“The demonization of Michael Schiavo is almost unforgivable,” Betz said. “Who in the world would want to make these kinds of decisions?”