Death and Taxes - The Blog

Terri Schiavo: The Autopsy

Most people have probably already heard, but Terri Schiavo's autopsy was released yesterday -- MSNBC has the story here.  Speaking of Ms. Schiavo, I can't think of a better recap of the case than this one, written by Joan Didion, in the New York Review of Books.  (The link comes from Jill Fallon's fascinating Legacy Matters website.) And, to tie Ms. Didion's work in with estate planning, she cites to an article written by (my former professor and employer) Carl Schneider and Angela Fagerlin regarding the ineffectiveness of living wills.  I discussed another, similar Schneider and Fagerlin article here.

Schiavo and the Slayer Statute

I was recently at a meeting of estate planning attorneys, and one participant speculated that the Schiavo case may not yet be over, because Ms. Schiavo's parents could attempt to invoke Florida's "slayer statute" against Michael Schiavo.

Slayer statute is another name for a statute that prevents a person involved in a decedent's death from inheriting any of the decedent's property.  The Florida statute can be found here.  Florida's language applies if a person "unlawfully and intentionally kills or participates in procuring the death of the decedent."  The language in Illinois (found here, although you have to scroll down to section 2-6) applies if a person "intentionally and unjustifiably causes the death of another person." 

The key questions are obvious: what is intentional and what is unjustifiable (or, if you're in Florida, unlawful)? I'm not a Florida attorney, but given that Mr. Schiavo's actions were authorized by a number of courts, I don't know how you could argue successfully that they were unlawful.

I find the Illinois language somewhat troublesome in a "power of attorney" scenario.  Let's say that A is terminally ill, and is married to B (who's also acting agent under A's power of attorney).  A also has children from a prior marriage.  B decides to "pull the plug" and let A die.  It seems to me that A's children may have an action under section 2-6, or at least the ability to have a court revisit B's decision and decide if it was "unjustifiable."

Podcast #1: Estate Planning and Disability Issues and the Schiavo Case

I'm not a big fan of technology for technology's sake, but I recently was persuaded that a podcast might be something worth trying, to enable me to share information in a different way.  So, I spoke with Ellen Sugrue Hyman (a Lansing, Michigan-based estate planning and disability law attorney) via telephone, edited the conversation using Audacity, and have posted the results below -- just click on the "podcast" icon (if the icon doesn't appear below because of your browser settings, you can get to the podcast by clicking here).  The topic is "Estate Planning and Disability Issues and the Schiavo Case."

PROGRAM NOTES

As I stated in the intro to the podcast, Ellen works for The Arc Michigan. Ellen can be reached by phone at (517) 347-4066 or by e-mail here.

The music heard at the beginning and end of the program is "felo de se," by Chemical Honey.

I'd like to thank Ellen for taking the time to participate, and I also want to thank Conference Calls Unlimited -- I couldn't have handled the technical aspects of this endeavor without them.

I'd greatly appreciate feedback on the podcast, especially whether you found it to be helpful or worthwhile, so I can decide whether to do more of them in the future.

The Schiavo Case: The Aftermath

While Terri Schiavo didn't have a health care directive (power of attorney or living will), her situation has led some commentators to ponder the moral and practical value of such documents. 

In this Weekly Standard article, Eric Cohen approaches the following question:  "What do we owe those who are not dead or dying but profoundly disabled and permanently dependent?"  Here's part of his answer, as it pertains to health care directives:

"...[E]ven if such individuals made their desires clearly known while they were still competent, is it always right to follow their instructions--to be the executors of their living wills--even if it means being their willing executioners? For some, it is an article of faith that individuals should decide for themselves how to be cared for in such cases. And no doubt one response to the Schiavo case will be a renewed call for living wills and advance directives--as if the tragedy here were that Michael Schiavo did not have written proof of Terri's desires. But the real lesson of the Schiavo case is not that we all need living wills; it is that our dignity does not reside in our will alone, and that it is foolish to believe that the competent person I am now can establish, in advance, how I should be cared for if I become incapacitated and incompetent. "

Andrew Sullivan takes Mr. Cohen to task here.  I tend to agree with Mr. Sullivan, but I did find Mr. Cohen's opinion to be pretty thought-provoking (once I began to ignore his fairly obvious bias).  If we can get past the sloganeering ("murderer" vs. "religious freak"), and really have a public discussion about the morality of end-of-life decisions, that would be a very good thing (is it happening a bit in the Catholic church?).  My guest and I try to do this a bit in my first podcast, which should be posted sometime this week.

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. 

Terri Schiavo: The Real Lesson

This morning's Chicago Tribune has an editorial about Terri Schiavo (as of 1/28/05, this link doesn't require registration, but that may change in the future).  Ms. Schiavo is the brain-damaged Florida woman whose parents and husband have been fighting over her feeding tube (her husband wants it removed, her parents don't).  The op-ed appears to be a space filler, concluding that it is Ms. Schiavo's "preference, and not anyone else's, that should prevail."  Does anyone really disagree with that sentiment?  I doubt it.  Rather, the question is: what was Ms. Schiavo's preference? 

For me as an estate planner, it's important to note that this entire dispute -- all the time, all the bad feelings, all the money -- could have been prevented if Ms. Schiavo had been clear about her wishes concerning life-sustaining treatment. That is the real lesson to take away from this situation. 

And what does the Tribune say on this point?  "Though [Ms. Schiavo] left no will, [her husband] says she told him she would never want to be kept alive in this sort of condition."  Unfortunately, the first portion of this statement implies that Ms. Schiavo might have made her wishes known in a will -- that is simply not accurate.  One of the most important things to know about a will is that it doesn't take effect until death, and therefore isn't the place where you would indicate your wishes regarding life-sustaining treatment.  As a result, whether Ms. Schiavo had or didn't have a will is irrelevant. 

What Ms. Schiavo really needed was the Florida equivalent of an Illinois health care power of attorney, which is a document specifically designed to address a situation where someone is receiving life-sustaining treatment.  An Illinois health care power of attorney allows you to appoint an agent to make health care decisions for you, and also lets you indicate your wishes concerning life -sustaining treatment (do you want to be kept alive no matter what? do you want your agent to consider whether you're in pain, whether your condition will improve, and the cost of treatment?). 

Maybe I'm quibbling here, but "will" and "health care power of attorney" are two entirely different things.  Is it too much to expect writers in a major American newspaper to understand this?