Living Will Gone Wild

01/17/2013

This is a case of living wills and advance directives gone wrong.

Susan Rissman is in a dispute with her sister, Judith Sly, over control of their 88-year-old father's health care decisions. Their father, Paul G. Smith, is gravely ill from a number of terminal conditions.  He was removed from a ventilator and feeding tube pursuant to an advance directive he wrote in 2004. In that advance directive, he stated that "he doesn't want his life prolonged by artificial means."  He also appointed Sly to be his health-care representative.

This case arose because Rissman, the other daughter, who had been Smith's health care provider for the past few years, claims that her dad is still capable of making his own health care decisions and has, in fact, asked for food and water. Rissman's attorney argued that "Smith had attempted to change his health-care representative" to Rissman. However, a judge disagreed with Rissman, claiming that there was not enough evidence to hold that Smith intended to revoke his advance directive or that he intended to appoint Rissman as his health-care representative.

Something doesn't make sense.  If the dad is competent, he should be able to do whatever he wants with respect to health care decisions, including revoking his health care directive.  One would assume he is compentent if he is asking for food and water. 

Stories like this should remind us all that it is important to ensure our health-care declaration reflects our current desires. These documents exist to ensure that not only are our wishes carried out, but also that our family members do not have a fight with each other at time that is already difficult for them.