A story yesterday about using "power of attorney" to make life- or-death decisions affecting a permanently unconscious relative gave the wrong implication about Maryland law. Maryland recognizes power of attorney but relatives who have not received it in advance must go to court to have a say. (Published 6/28/90)
The Supreme Court's decision Monday setting limits on a "right to die" makes it crucial for all adults to write down exactly what they want their doctors to do if they become permanently unconscious, attorneys and right-to-die advocates said yesterday.
"It's dramatized the importance for everyone of the necessity to take responsibility for their own medical future by setting forth their wishes in a written directive," said Shirley Neitlich, a spokeswoman for two New York-based patient rights groups, the Society for the Right to Die and Concern for Dying.
The ruling was made in the case of Nancy Cruzan who is in what doctors call a persistent vegetative state, a condition in which the part of her brain that controls thought and voluntary movement has been destroyed but the part that controls breathing still functions. Because she cannot swallow, she has been fed through a tube for the past seven years. Her condition is not considered terminal, and she could continue to survive for years. Her parents sought to have her feeding tube removed. The court denied the request.
States vary widely in the powers they give family members to make decisions for a relative in a persistent vegetative state. The most restrictive are New York and Missouri, whose courts have demanded "clear and convincing" proof that permanently unconscious patients would not have wanted to be fed artificially.
"As a practical matter, that may be close to impossible to meet unless you put it in writing," said Charles Sabatino, assistant director of the American Bar Association's Commission on the Legal Problems of the Elderly. "The Missouri court's interpretation is by far the strictest in terms of requiring clear and convincing evidence of that individual's wishes."
The District of Columbia, Virginia, and 28 other states have laws recognizing "power of attorney," in which a legally competent person designates someone who can decide whether to withdraw treatment in the event he or she becomes permanently unconscious. In the District and Virginia, in the case of a person who failed to grant power of attorney, the next of kin is given the power to decide whether to stop treatment or nutrition.
Some states also recognize living wills, in which a person may specify what procedures he or she wants done if permanently unconscious.
Maryland law recognizes a concept called durable power of attorney, but relatives who want to take the more extreme steps of stopping nutrition or other treatment must go to court. A person also may use a power of attorney form to specify whether treatment should be discontinued in certain circumstances, however.
"Durable power of attorney is the single best thing a person can do to prevent winding up in the situation of Nancy Cruzan and her family," said Jack Schwartz, chief counsel for opinions in the Maryland attorney general's office.
Concern for Dying and the Society for the Right to Die have developed a general power of attorney form, as well as forms tailored for people living in states that have specific statutes recognizing power of attorney and living wills. The forms can be obtained by writing the groups at 250 West 57th St., New York, N.Y., 10107.
The forms should be signed by two witnesses and filed with a person's physician or lawyer or in a registry such as the one maintained by the right-to-die groups. The witnesses who sign the form should not be relatives or anyone who would benefit from the person's death.
Right-to-die advocates also suggest that the document be updated periodically and that people should let their relatives know that they drew up the document and even make copies available to them. "It's not the type of thing that should be put in a safe deposit box where it's inaccessible," said T. Patrick Hill, Concern for Dying's director of education.