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The Honolulu Advertiser

Posted on: Friday, April 8, 2005

ISLAND VOICES
Hawai'i law aids in end-of-life decisions

By Eric S.T. Young
Chairman of the Probate and Estate Planning Section for the Hawaii State Bar Association

If there is a silver lining to the very unfortunate Terri Schiavo situation, it is that the wall-to-wall media coverage has created a heightened awareness of the benefits of advance healthcare directives. Ms. Schiavo's condition before her death (described as a persistent vegetative state) highlights the need for everyone to record his or her wishes regarding end-of-life decisions in writing.

According to FindLaw.com, a new national survey of 1,000 adults found that "only 33 percent of Americans have a living will." The remaining "67 percent of Americans lack a living will, potentially leaving them with no say over whether they wish to receive life-sustaining medical treatment in the event they should become incapacitated or terminally ill."

HOW TO GET HELP

Advance healthcare directives are widely available. Help can be obtained from numerous sources, including: University of Hawai'i Elder Law Program, your local hospital, your estate planning or elder law attorney, and the Hawaii State Bar Association's Lawyer Referral Service.

Fortunately, Hawai'i has adopted the Uniform Healthcare Decisions Act, which permits a person to create an "advance healthcare directive." An advance healthcare directive is an "individual instruction" concerning healthcare, a power of attorney for healthcare, or both. Any adult or emancipated minor may give an individual instruction.

While an individual instruction may be oral or in writing, the obvious benefit of writing is that it is more likely to be respected by family members, healthcare providers and a court.

The act contains a sample form that addresses Terri Schiavo's situation. In an advance healthcare directive, a person may direct a healthcare provider to withhold or withdraw medical treatment, or prolong his or her life "as long as possible within the limits of generally accepted healthcare standards."

A person may choose not to prolong his or her life if he or she has "an incurable and irreversible condition that will result in death within a relatively short time," becomes "unconscious and, to a reasonable degree of medical certainty ... will not regain consciousness," or, where "the likely risks and burdens of treatment would outweigh the expected benefits."

A person electing not to prolong his or her life may also decide whether the healthcare provider must provide or withhold artificial nutrition and hydration.

Advance healthcare directives are not just for elders. Terri Schiavo was just 27 years old in 1990 when she suffered the cardiac arrest that resulted in her condition. Because she did not have a living will, and because her parents and husband disagreed about the removal of her feeding tube, the courts had to determine what Ms. Schiavo's intent would be.

Once you have signed an advance healthcare directive, you should provide copies to your healthcare providers and any agents that you have designated. You should also meet with your agents and others close to you and clearly communicate your end-of-life decisions.

Fundamental issues regarding quality of life, religion, due process, separation of powers and states' rights can be left to pundits, theologians, politicians and philosophers. At its core, however, the right to decide whether to accept or refuse medical treatment is a constitutionally protected right that belongs to the individual and to no one else. An advance healthcare directive is the surest means of exercising that right.