If a client does not want to be kept alive with life sustaining treatment, and artificial nutrition and hydration, the client should provide clear instructions to his or her agent in his or her Durable Power of Attorney for Health Care Decisions or through an Advanced Heath Care Directive.

The California Heath Care Decisions Law recognizes the right of an adult person to instruct a physician to withhold or withdraw life sustaining treatment because adults have a fundamental right to control decisions relating to the rendering of their own medical care, including the decision to have life-sustaining treatments withheld or withdrawn. The act specifically recognizes that medical technology has made the prolongation of life beyond natural limits possible, and that individual autonomy must be protected. Personal autonomy must be weighed against the duty of the state to preserve life. The duty of the state to preserve life must also encompass a recognition of an individual’s right to avoid efforts to sustain life which may demean or degrade humanity.

In the Durable Power of Attorney, the client can provide instructions as to what condition he or she would not want to continue receiving life-sustaining treatment. Most commonly, our clients instruct that they would want life-sustaining treatment withdrawn or withheld if he or she is diagnosed with a "brain dead" irreversible coma. In addition, most of our clients instruct that they would want artificial nutrition and hydration withdrawn simultaneously. The distinction is important because doctors may disagree as to whether artificial nutrition and hydration constitutes life-sustaining treatment, rather than basic care. In addition, a person may direct in their Durable Power of Attorney for health care decisions that life-sustaining treatment withheld or withdrawn even in the absence of terminal illness, permanent coma, or persistent vegetative state. These issues should be carefully discussed with a physician and an attorney.

California Heath Care Decisions law prohibits an agent from permitting any affirmative or deliberate act or omission to end a principal’s life. The exception to that rule is that the agent may withhold or withdraw health care pursuant to the principal’s specific written instructions or as instructed to permit the natural process of dying. The Durable Power of Attorney for Health Care Decisions may give the agent authority to direct the withholding or withdrawal of artificial nutrition and hydration, and all other forms of health care. Case law also supports the right to give another the authority to refuse medical treatment or request the withdrawal of it. The rationale is to protect an individual’s fundamental right to control decisions relating to his or her own medical decisions, including the decision to have healthcare withheld or withdrawn.

It is imperative that client’s who do not want to receive life-sustaining treatment make that known by written instructions, or else, a Terri Schiavo case can result. In that case, Terri’s husband and Terri’s parents could not agree on what decision Terri would make if she were able to assess her own condition and make her own decision.

Terri’s husband and parents also could not agree on what her condition was, although court appointed doctors had consistently found that she was in a persistent vegetative state. In 1990, at age 27, Terri suffered a cardiac arrest as a result of a potassium imbalance allegedly due to bulimia. She never regained consciousness. As early as 1996, the CAT scans of Terri’s brain showed a severely abnormal structure, with much of her cerebral cortex being gone and replaced by spinal fluid due to oxygen deprivation to the brain. In short, nothing but an act of God, or a true miracle, and not medicine, could have brought Terri back, and she would have always remained in an unconscious, reflexive state, totally dependent on others to feed her and care for her most private needs.

Even with such a dire diagnosis Terri’s parents engaged in a continuous legal battle to preserve their daughter’s life by objecting to the removal of her feeding tube. This is a case in which the Florida Legislature, Governor, and the Congress, and the President have all gotten involved. The stakes are high with this emotional issue, if someone makes the wrong decision, the result is irrevocable.

Terri’s husband was left with the daunting task of proving by "clear and convincing evidence" that Terri would not have wanted to be kept alive artificially in that condition. Terri’s husband presented evidence that Terri stated to him and others, after seeing a movie, "no tubes for me." The court weighed that evidence as well as evidence about Terri and her beliefs and consistently found that she would not have wanted to live that way. Of course, Terri’s husband would not have been in this position had Terri put her wishes in writing as we are recommending here.

In California, in the absence of a directive as to life sustaining treatment, a conservator will be appointed by the court to make medical decisions if a conservatee has been adjudged to lack the capacity to give informed consent for medical treatment. The conservator has the exclusive authority to give consent for such medical treatment to be performed on the conservatee as the conservator, in good faith based on medical advice, determines to be necessary; and the conservator may require the conservatee to receive such medical treatment, whether or not the conservatee objects. In contrast to following written directions in a Durable Power of Attorney for Health Care Decisions, the decisions made by a conservator derive authority from the power of the state to protect incompetent persons.

The conservator must make decisions in the conservatee’s best interest. In determining the best interest, the conservator must consider the conservatee’s personal values to the extent known to the conservator. A conservator can authorize removal of a nasogastric tube from a conservatee who is in a persistent vegetative state, if the decision is made in good faith and is based on medical advice which includes the prognosis that there is no reasonable possibility of return to cognitive and sapient life. This stems from the fact that a person has the fundamental right to determine the scope of his or her medical treatment, including the right to refuse treatment, and that right survives incompetence so that each patient retains the right to have the appropriate decisions made on their behalf.

On the other hand, under California case law, a conservator may not withhold artificial hydration and nutrition from a conscious, severely impaired conservatee who was not terminally ill, comatose, or in a persistent vegetative states, and who had not left formal instructions for health care or appointed an agent or surrogate for health care decision, absent clear and convincing evidence that the conservator’s decision is in accordance with the conservatee’s own wishes or his or her best interest.

If there is an objection and a legal battle ensues, it will have to be shown to the court by "clear and convincing evidence" that the conservatee would have wanted life-sustaining treatment withdrawn or that it would be in the conservatee’s best interest. The "clear and convincing evidence" test requires a finding of high probability, based on evidence so clear as to leave no substantial doubt and sufficiently strong to command the unhesitating assent of every reasonable mind.

As the polls suggested, the great majority of individuals in Terri Schiavo’s position would not want to be kept alive, and with few exceptions every client that this firm has met with shares that belief. With that in mind, and drawing from the Schiavo case, if a client does not wish to be kept alive by artificially administered means and wants to avoid a protracted legal battle, it is important that their Power of Attorney for health care decisions include the client’s wishes as directives of authority to the agent. This will help to have the client’s individual wishes and desires known and followed, without the necessity of court involvement, and save the family from the trauma of denying care and treatment on their own volition, instead they will be in the easier position of following clear written instructions rather than denying care and treatment on their own volition.

Please feel free to contact this office regarding a Power of Attorney for health care decisions or to update an existing one.