Missing the Point of Living Wills

This AP article, about the Schiavo case sparking interest in living wills, is appearing in lots of papers around the country, including yesterday morning's Chicago Tribune.  Unfortunately, articles like this one can be dangerously misleading.  You can wind up signing a document that everyone says you "must have," when in actuality the document doesn't work the way you thought it would. 

An Illinois living will would not have resolved the Terri Schiavo case.  Let me repeat that, since it's a big point: an Illinois living will would not have resolved the Terri Schiavo case. 

To understand why the above is true, it's necessary to understand the workings of the Illinois Living Will Act (found at 735 ILCS 35/1 et seq., and referred to in the rest of this post as "the Act").  The Act allows you to sign a document instructing your doctor to "withhold death delaying procedures in the event of a terminal condition." 

As with most statutes, the defined terms are important, and here we run into two of them: "death delaying procedures" and "terminal condition." 

To begin with, the Act is only applicable in cases where someone has a terminal condition (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.").   Ms. Schiavo does not have a terminal condition.  Depending on whom you believe, she's either in a persistent vegetative state or just physically disabled.

In addition, even if Ms. Schiavo's attending physician determined that she had a terminal condition, and Ms. Schiavo had executed an Illinois living will stating that she wanted death delaying procedures to be withheld or withdrawn (thereby making her a "qualified patient" under the Act), Ms. Schiavo's feeding tube still could not be removed.  While the Act defines "death delaying procedure" to possibly include "tube feeding," it also states that "[n]utrition and hydration shall not be withdrawn or withheld from a qualified patient if the withdrawal or withholding would result in death solely from dehydration or starvation rather than from the existing terminal condition."

So what's a person to do?  Tomorrow I'm going to talk about whether a health care power of attorney can (or should) be used to avoid a situation like Ms. Schiavo's.