Friday, March 25, 2005

Terri Schiavo: The living and the dying

Spirit of the Law vs. Letter of the Law

I read several articles in the opinion journal this morning and it brought up some more thoughts on the Terri Schiavo case and how they apply to people like you and me.

Let's face it. At the end of our lives, if we were any kind of person at all, there are going to be some very sad people walking around, wringing their hands and trying to make the right decision for us. Yes, most of us will end up in a position where someone will be making those final decisions for us because most of us will not have the convenience of a quick stroke that takes us out in one fell swoop nor in the slow, conscious dying of a cancer or HIV patient who is able to arrange everything "just so" before they die. Even that last group, at the very end, will most likely be unconscious either from physical or medicinal reasons and unable to make that last directive.

So, it is going to be left up to somebody to make that final decision for us. To unplug or not to unplug? And that decision will include a myriad of "plugs" that they are going to have to deal with.

Most of you reading this are shuddering right now at the very thought of having to think about dying. You may be like me, XX years old, active, feeling pretty young and with it on most days. Heck, you might even BE young. Thinking about dying or death is just so morbid and morose and, well, not something anyone wants to talk about. As a matter of fact, the reason many people are going around saying "enough already about Terri Schiavo" isn't because they have strong beliefs one way or the other or because they really think that the news media is over playing the situation. It's because it is about death and, right next to "sex" and "religion" in this country "death" is just about the scariest topic anyone can think of. It makes people supremely uncomfortable.

It's superstitious really. Somewhere in the back of people's minds they are thinking that they are inviting the grim reaper to become more aware of their own mortality when they are talking about death. That's why so many people put off things like making wills, organizing their death benefits, living wills and directives, etc. We're all going to live, at least for a while longer, most think, so they put it off and putt if off and put if off until one day...


They drive head on into the giant oak tree in the middle of town square, right after going to their lawyer to finally finalize that divorce they were going to get the last five years and officially cut their soon to be ex-wife out of the child's life for good or demand that she never seek custody for various reasons, arrange to have their parents designated as guardians should something happen and arrange to have their life insurance policy transferred to a trust fund if their child is under the age of 18.

Well, they meant to do all that, but they never got around to it. Now, guess what? They are in a hospital in North Dakota, on a respirator, in a coma and the only relative for miles around is their son or daughter who is 14 and doesn't know anything better to do than to call the soon to be ex-wife, who is not ex at all.

By most state laws, including the state of Florida, there is a primacy of order fo guardianship or authorized representative for an incapacitated person. Guess who is the first person on the list? You guessed it, the legally married spouse.

No where in the law does it say that the spouse has to prove that you were on good standing the last time you saw each other. All that matters is that they are legally bound to you.

So, if you are one of those people that are eternally "separated" but never get around to the divorce, you are letting yourself in for a big surprise.

Now, let us say that your legal, though unwanted, spouse shows up at the hospital long before any parent or any other potential family member from Chickamagwa, Alabama shows up to take responsibility. Hospitals in an emergency setting will take certain actions within their own scope to provide life saving and life sustaining care. However, the minute someone shows up that even smells like they have some authority in the situation, that person will become the defacto authorized representative and, again, your legal spouse, however unwanted, is it. You have just left your fate in the hands of the person that may hate your guts, or worse, feels nothing for you at all anymore.

What about those relatives from Chickamagwa you say? Can't they protest or something? First of all, they'd have to know you were in the hospital. Secondly, they'd have to get there and ask the court for an injunction against your spouse (sound familiar?) and they'd have to prove that your spouse is not an appropriate guardian. Which, if you live in the state of Florida where they follow the letter of the law and not the spirit of the law, your spouse is legally your guardian. And, guess what some more? Your spouse is also the legal guardian of your child. Period. Unless of course, you got off your fat patutti and actually had papers legally filed and accepted by the court banning them from contact, custody or any type of guardianship. Even then, you are in a coma or quite likely dead. Your spouse can very likely go to court and win custody of the child from anyone that tries to interfere unless your spouse is a complete, disgusting, drunken, drug addicted, slob wanted for murder in three states. Or, they can at least make it very painful for anyone that wants to seek custody of the child.

But, I digress, the point here is that, unless all the appropriate forms have been filed in the court, you are legally married and your spouse is the legal guardian of your child. Even if you write in your will that you want your parents to be the legal guardian of your child, guess what? It doesn't mean a damn thing unless the courts have terminated your spouse's legal rights in court.

So, where am I going with this? Most courts follow the "letter" of the law. This helps them keep all the parts and pieces of the judiciary in place. The letter of the law sometimes does not take the reality of a situation, all of it's nuances, into consideration when it makes a ruling. The letter of the law is a cold and heartless bitch, quite frankly, and many judges tend to go with those types of rulings because, when you follow the letter of the law, it is less likely that your decisions will be overturned. Overturned decisions by a judge is just like bad stock investments for a broker. Bad publicity. It certainly won't get them re-appointed or re-elected.

Thus you have situations where Michael Schiavo, living with another woman and having had children with her over the course of several years, if not nearly a decade, can still be the legal guardian of his legal wife, Terri Schiavo, and make decisions on her behalf.

Back to our mythical example, having crashed into a tree, having their potentially irate spouse on site for decision making and no one able to come to the rescue for at least another eight hours while ma and pa Doe try to arrange a flight or start driving to North Dakota. Odds are, ma and pa Doe aren't even thinking about who gets to make your medical decisions, but are focused on just getting their so it is highly unlikely they even thought about getting an injunction to stop their daughter in law (soon to be ex) from making any decisions. Now the doctor tells your spouse that your brain is filling up with fluid and several organs are beginning to shut down. The doctor recommends either an aggressive treatment, from which you have about a 30% survival chance, or doing nothing but making you comfortable until you stop breathing or they pull the ventilator/respirator hose off of you.

Maybe your soon to be ex is not all that bad a person. Maybe he or she just doesn't know what you'd want because you've been separated for three years and that is a long time between decision making. Of course, along with all the other issues, you never got around to filling out that Durable Medical Power of Attorney and having it notarized. The one that said who you were legally designating as your final decision maker. The one that let you choose some one other than your soon to be ex or your emotionally charged parents.

So, there you are, in a coma or vegatative state and, according the letter of the law, your legal spouse gets to make legal decisions about your healthcare and can legally take custody of your child. They can even legally bar your parents from your sick room and from seeing your child. Then, they can legally decide to pull the plug. Your parents, not being from Pottsdam, North Dakota don't know who to call to stop it. They don't know your attorney because you never told them and your 14 year old doesn't know because they are 14.

Away goes your life support. Away goes your life. Your spouse has custody of the child. Guess what happens next?

The $100k insurance policy that you put your child on as the sole beneficiary? Your spouse now has access to that as well. How can that be you ask? It was in your child's name.

Well, bub, your child is under the age of 18. Their legal guardian is their legal representative. Unless that policy is stipulated to go into a trust fund to be held until the child is 18, the legal guardian can sign for and receive the funds from your insurance policy on your child's behalf. Your child can wake up at 18 and find their entire inheritance pissed out the window like so much bad beer.

You think that being actually divorced and remarried saves you? Think again. In regards to your child, unless the courts have terminated your ex spouses parental rights, they can and will become the child's legal guardian in the event of your death or incapacitation. That's right, your new wife or husband will have little say unless they gird the loins and wade into battle on the child's behalf. Again, even if you specified it twenty times in your will, it wouldn't matter much uness it came down to a real fight and somebody showing that the other person is just plain unfit for parenthood and that is a rare deal indeed.

Why is this possible? Because most states and judges follow the letter of the law, not the spirit. If the spirit of the law was followed, people who have been remarried and sharing a life and child rearing with someone else for ten years would be the automatic primary candidate for guardianship. It just doesn't happen that way.

So, what can we do to avoid some of these things?

First of all, if you have a divorce pending for 5 years, don't you think you should get it done and over with?

Secondly, if you have an issue with the potential for your ex spouse to have custody of your child should you die or become incapacitated, you will have to go to court and have their parental rights terminated right now. Otherwise, even if they only get 15 mins every two weeks, they will be considered prime candidates for guardianship.

Third, if you are single, widowed, divorced, in the process of becomeing divorced or you just don't believe that your spouse has what it takes to hold up at the end and help make appropriate decisions about your care, you can circumvent this little law. You can get and notarize and file with your attorney and your physician and anyone else of interest a Durable Medical Power of Attorney. Don't get this confused with a regular Power of Attorney. Regular Power of Attorney only gives someone the right or ability to take care of your financial situation. Although, you may need this as well. The Durable MEDICAL Power of Attorney, specifies a person that you deem will best represent your interests should you become incapacitated. It doesn't have to be your spouse or your parent. It does have to be someone that is older than 18.

Fourth, and in conjunction with your Durable MEDICAL Power of Attorney, you should complete a form that's called the "living will" or an "advanced directive" that explains exactly what you do or do not want done in certain medical cases. Both of these forms normally only become usable if you are considered incapacitated by one or two physicians.

If you think the examples I gave are way out of line or "hysterical" think again. The court system for many years have seen these kinds of cases go through probate or civil court.

Terri Schiavo is just the latest and the one that garnered the most media attention. Everyday, people are having their lives terminated by someone that most of us would not even consider is an appropriate guardian, but the letter of the law dictates otherwise.

Everyday, people are winning back custody of their children after their spouse is made ill, incapacitated or even dead.

It does happen. The best thing to do to make sure the "spirit" of your demands is carried out per your wishes and not just the "letter" is to complete all of the necessary forms and documentation.

Don't end up like Terri Schiavo and letting the "letter" of the law dictate what hapens to you.


Donal said...

Kat there are several other reasons that courts follow the letter of the law and not the "spirit" other than the ones you mention. It promotes consistency in the law- if you do something its generally clear if its illegal or not. Also Congress has had quite alot of responsibility for following the letter- mandatory minimums in criminal sentencing for example. Also every time a judge follows the spirit rather than the letter of the law- people decry the rise of activist judges (who are really just judges who rule against what you belive in).

Kender said...

I have had a living will for years.....being in the medical field will do that to you, especially when you are in the medical field as a patient...constantly.....and it states "Keep feeding my fat ass, even if all I can do is drool....don't starve me."