In my work I meet many amazing Virgin Islanders, and am always impressed with the breadth of their world experiences. Recently, I had the opportunity to work with a client who was preparing to take the trip of a lifetime through the South Pacific, and the subject of her health preparations was discussed. I learned that while she had received all her suggested immunization shots, she had not made what I consider the more important health-care preparations.
On the best of days, it is hard to conceive the issues concerning our own mortality, and understandably more difficult to talk about them. But I suggest that if you are able to set aside time to explore your own feelings about the end of your life or the potential for unexpected injury that could result in a terminal condition, and then express those wishes in a meaningful and legal document, the comfort and piece of mind you will bring — not only to yourself, but also to those closest to you — will greatly offset its difficulty.
In my experience, many people who are otherwise very skilled with strategic and financial planning for their business choose to ignore issues related to their own death and incapacity until it is too late. Simple planning now can ensure that an individual's final health-care wishes are understood and properly carried out. Expressing these wishes to friends and family will also avoid disputes and painful decision-making dilemmas at a time when emotions may be running high. We all recall the worldwide attention given to Terri Schiavo and her family as they battled over decisions involving her health care, which could easily have been addressed if she had only completed one of the basic legal documents for health care.
If an individual wishes to continue to have any control over the medical treatment they desire or refuse in the event of their terminal illness or permanent unconsciousness, those decisions should be expressed in a properly drafted and executed legal document. Without such a legal expression, the decisions made by physicians and family may well run contrary to your own wishes.
The necessary documents which convey your desire for final health care, a Living Will and a Durable Power of Attorney for Health Care, are by their nature, designed to be simple, straightforward, and easy to understand.
A Living Will, also referred to as an Advanced Health Care Directive, is a legal document that expresses specific instructions as to the course of medical treatment that is to be taken by caregivers — or, in some cases, the refusal of certain types of medical treatment. Once executed, the Living Will does not have any force or effect until the individual is unable, due to their incapacity, to personally provide a caregiver informed consent to proceed with certain medical treatments.
An executed Living Will may declare that when a client is certified to be permanently unconscious, as is usually determined by the client's attending physician and a second examining physician, that artificial life-support systems be disconnected or withheld altogether. The client may also elect to discontinue or prevent artificial nutrition and hydration through feeding tubes or intravenous methods.
A Durable Power of Attorney for Health Care, on the other hand, nominates a specific individual to make all health-care decisions for a person if they are unable to do so based on their wishes and representations expressly written in the Health Care Power of Attorney. This Power of Attorney may also limit the Attorney in Fact (the nominated agent) by issuing certain directives regarding issues of health and medical treatment.
The most common three determinations made under the Health Care Power of Attorney include directing a caregiver to:
a) disconnect artificial life-support systems in the event of terminal illness;
b) disconnect artificial life-support systems in the event of permanent unconsciousness; and
c) terminate artificial nutrition and hydration.
In addition, a person may set forth any specific medical, religious or other personal desires pertaining to their health care in the Health Care Power of Attorney. For example, a person may request that if they become irreversibly unconscious, medication in an amount which would alleviate their pain should be administered. My favorite determination, recently requested by a client (one that I may adopt myself), was that her favorite music should be played on her personal stereo device at all practical times should she become irreversibly unconscious. Ah, if our only question for the end of this life was whether to be ushered out by Bach or boogaloo.
Both a Living Will and Health Care Power of Attorney require the individual to be at least 18 years old, competent to make informed decisions and that the document be executed before two witnesses and a notary public. Once either or both of these documents have been signed by the individual, their proper execution is of critical importance. In the United States Virgin Islands, the witnesses for both of these documents may not be the individual executing them, their spouse, their attending physician or anyone who may have a claim against the individual’s estate. This requirement effectively prevents Aunt Agnes, Brother Bob and Cousin Connie — who all stand to inherit Dying Donnie’s estate — from making a pact with one another to misrepresent Donnie’s final health-care wishes for their own purposes. Both documents are revocable through normal revocation procedures exactly as any Last Will and Testament where the individual formally expresses their desire to revoke all previous Wills.
I recommend to my clients, who wish to have control over their medical treatment at the end of their lives, to execute a Health Care Power of Attorney, using the Living Will as an important backup. In the event the client then becomes permanently unconscious and the nominated health-care agent is unavailable, the Living Will sets forth the client’s desires regarding their end-of-life treatment, which should be honored by the attending and examining physicians.
After listening to the impassioned and diametrically opposed pleas proffered by both Terri Schiavo’s husband and her parents, and watching as the battle stretched on for seven years, I cannot encourage my clients enough to have frank discussions with their family members and physicians about their final health-care wishes and to memorialize those wishes in a legal document. I have found in my personal life that once I overcame my own anxiety about death and incapacity, communicating my wishes to family became remarkably easier.
Editor's Note: Attorney Carl Williams is Chair of the Real Estate and Estate Planning Practice Group at Tom Bolt and Associates, PC, a full service business law firm on St. Thomas, U.S. Virgin Islands.
