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Guardian Tries to Take Patient Off Life Support !
By Michelle Beneski, Esq.
Many people are familiar with the Florida case involving Terri Schindler Schiavo. In that case, poor Terri was in a coma and her husband, who was also her legal guardian, wanted to take her off life support. Terri’s parents objected and the case went all the way to the U.S. Supreme Court. In the end Terri was taken off life support. The case highlighted the need for people to name someone who is legally authorized to make medical decisions for us if we can’t make them for ourselves. It also highlighted the need for us to put our end of life wishes in order so that there is not a fight over what each person believes we wanted for our care. Well, a new case is happening in California and it is truly shocking.
Janet Rivera, who is 46, has been in a coma for two years following a heart attack. She has no power of attorney or living will. She never discussed with her family whether or not she wanted to stay on life support if she was in a coma. Janet’s family wants to keep her on life support. The hospital asserted that Janet’s family was unwilling to make medical decisions for her and therefore asked for a Public Guardian to be appointed. When a person is incapable of making his or her own decisions and hasn’t signed a Health Care Proxy then the Court appoints someone to make decisions for him. This Court appointed alternative decision maker is called a “Guardian”. A public guardian was appointed by the County Court. Now that County Guardian is asking a court to decide if keeping Janet Rivera on life support is the right thing to do. The Guardian says he is asking because five doctors have said Rivera’s condition is untreatable and irreversible.
It’s highly unusual for a Public Guardian to argue for removing life support without proof that it is what the patient wanted, especially against the wishes of the person’s family. The County Guardian says financial considerations played no role in the decision but the family contends that the County Guardian might not have sought to remove life support if Janet Rivera had better health insurance. Janet Rivera is on MediCal (Medicaid in California).
This could happen to you!! It is not a joke. It is very real. Unless you have both a health care proxy and a living will you are at risk. A Massachusetts Health Care Proxy is a document in which you legally authorize an agent to make medical decisions for you if you are unable to make them for yourself. A Living Will is not a legally binding document in Massachusetts. Rather a Living Will is a statement of your wishes regarding end of life care. It describes whether or not you want life support if you are in a vegetative state and how you wish to be treated. Some estate planning attorneys put Living Will directions in the Massachusetts Health Care proxy. Our office prefers to do a separate document so that the instructions can be more detailed and the health care agent can have flexibility in following your wishes.
At a minimum everyone needs a health care proxy. However, in our opinion, it is not enough. You should also have a Living Will to express in writing your preferences for end of life care. You should do this even if your immediate family knows your wishes. We have seen many times when a Living Will saves the family from heartbreak and turmoil.
Do you have a health care proxy and a Living Will? If not, you are at risk of a guardianship which will cost your family thousands of dollars and a stranger could be appointed to make medical and legal decisions for you. Call our office at 508-994-5200 to set an appointment for a consultation. We generally charge $500 for a consultation but this fee will be waived if you mention this article.
This information is for general informational purposes only and does not constitute legal advice. For specific questions, you should consult a qualified attorney. This article was written by Attorney Michelle D. Beneski of Surprenant & Beneski, P.C. The law firm has offices in New Bedford, Mashpee and Boston which specializes in estate, tax, and Medicaid planning.
Michelle Beneski, Esq.
Michelle D. Beneski, Esq. is a partner in the Surprenant & Beneski, P.C. located in New Bedford, Massachusetts. The firm concentrates on Elder Law and Estate Planning Issues.
She is a frequent speaker and author on estate planning topics.
Michelle is a graduate of Pepperdine University School of Law, Cum Laude and holds L.L.M. in Taxation from the University of Florida, College of Law. She is a member of the National Academy of Elder Law Attorneys, Wealth Counsel and the Bristol County Estate Planning Council.
We meet with our clients for Free every three years to ensure the documents still work for them. Surprenant & Beneski, P.C. charges $500 for an initial estate planning consultation. However, this consultation fee will be waived if you reference this article. For your appointment please call 508-994-5200 or call for our Free Report “25 Ways You Can Mess Up Your Estate Plan”.
Feel free to contact Michelle at 508-994-5200 or visit www.nbelderlaw.com.
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