The Will to Live — or Die

The phones at law firms around the country have been ringing nonstop asking about living wills.
“There has been a huge response,” said Brian O’Dwyer, of O’Dwyer and Bernstien Law in Manhattan. “People are calling and making their appointments.”
“Everybody has seen the news,” he said. “And nobody wants what happened down in Florida to happen to them, with the government stepping in.”
“Schiavo is having its effect,” according to Robert Reid, who specializes in elder law at the law offices of John Dearie. “Interest has doubled. It’s something people ask about.”
End-of-life rights are mired in controversy over moral and ethical issues, but lawyers agree many problems can be solved ahead of time with a living will.
“It is a public service, if nothing else,” Reid said.
Because a lot of the issue is associated with death, “many people don’t want to talk about it,” he said, “but it’s part of life.”
“It prevents a mess for the people you leave behind,” he said.
Technically speaking, “a living will is a desire to give your views on what happens after you are unable to make or communicate a rational decision,” O’Dwyer said. “Whenever we do a regular will in our office, we always recommend a living will, as well. And every customer has done it.”
The will can specify whether you want extraordinary measures taken on your behalf to keep you alive, and to what extent.
Writing out the will itself “is a simple procedure,” according to O’Dwyer, and while a lawyer is not necessary, he recommends one, judging from the case in Florida.
“Obviously it’s better to have a lawyer,” he said. “To make sure the formalities are closely observed and not disregarded.”
State laws don’t have a formal living will form, but the New York State Bar Association has a form on its Web site that covers the basic format.
“A living will can go on for pages,” Reid said. Since the proxy goes into effect when you are unconscious, he recommends that it be kept close by, such as stuck on the refrigerator with a magnet, and one kept in a car’s glove compartment.
Laws vary from state to state, and while some worry about the potential of one state not upholding a will drafted in another state, it should not be a problem, according to lawyers.
“As long as it is drawn up and witnessed properly, it will stand up to scrutiny,” said John Dunne of Kelleher and Dunne LLP, a Manhattan-based law firm.
“Theoretically, a federal proxy form would be nice,” Reid said. “But I don’t find major problems from state to state.”
When in another state, a problem would arise “more from reaction to form rather than substance,” Reid said, explaining that, for example, a hospital staff might be hesitant to pore over forms.
New York State also has something called a health care proxy, which is a short form, assigning someone the right to act on your behalf after you are unable to.
It should be someone who you trust and knows you well, and, most important, knows your wishes, which make it all the more important to have discussions with one’s chosen proxy that will give the person a good idea of how one wants to be kept alive, if at all.
All three lawyers recommend both forms be filled out.
The New York State Bar association recommends that in the living will, what should be written out is the type of life you want to maintain, as opposed to listing all the possible illnesses and their effects and what should be done in each case.
Reid has seen clients “vacillate back and forth between the moral and right-to-life issues,” he said, adding that he prefers to let them come up with their own choices.
Much of the moral issue surrounding end-of-life policies is the idea of being kept alive by artificial nutrition and hydration, which is what the Schiavo case is dealing with.
The health-care proxy can be made aware of what one’s wishes are in that respect.
Reid tells clients that while such means may prolong life, it does not usually save someone.
Schiavo was only 26 years old when she collapsed and fell into a coma, an age when many people aren’t thinking about their last wishes, but lawyers point out that younger people might be more likely to suffer certain types of serious injuries that can render them powerless.
Schiavo suffered brain damage after a potassium imbalance caused by an eating disorder resulted in a heart attack that deprived her brain of oxygen long enough to leave her in a vegetative state.
“Not that many young people think about it,” said Reid, who told of one client who became a quadriplegic after a motorcycle accident and was “given up for dead.”
Though he has made a partial recovery, “decisions had to be made while he was unconscious,” Reid said.
Dunne said that it is something everybody should think about, including younger people.
“They could have a tragic car accident,” he said. “Younger people don’t think about this.”
Reid still expects the tide of calls for living wills to stem eventually, especially from younger people.
“They will go back to thinking they’re invincible,” he said.