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Know What You Want, Then Make It Known

The struggle over Terri Schiavo’s fate did not break new legal ground, but it offered some estate-planning lessons nevertheless. Among them:

Every adult needs an estate plan. Though this is a standard estate-planning mantra, many professionals focus on parents of young children, people with substantial assets, and the elderly. Most American adults die intestate, meaning without a will. Very few people who lack wills have other documents such as a living will, a durable power of attorney or a health care proxy, all of which can be crucial in determining the treatment they receive if they become incapacitated.

If Terri Schiavo had prepared a living will, courts and relatives would have had a much clearer indication of her desires, including the use of artificial nutrition and hydration. If she had signed a health care proxy, she could have made clear that she preferred her husband – or somebody else – to make decisions on her behalf.

The law’s default choices may not do what you want. Because Mrs. Schiavo left no will and no living will, Florida law automatically made her husband both her sole heir and her health care surrogate decision-maker. More often than not, this is a reasonable outcome, but it may not be best in your circumstances.

Same-sex and unmarried couples have special concerns. Had Terri and Michael Schiavo not been married, her parents – not he – would have been her sole heirs and her health care surrogates, unless she had specified otherwise in her estate-planning documents. Couples in long-term committed relationships have no legal standing in most jurisdictions, or a partner in such a relationship may be given a lower priority than other relatives. In Florida, for example, a “friend” can be a default health care surrogate, but only if there is no spouse, adult child, parent or other close relative of the patient available to serve. A validly executed health care proxy can give priority to the domestic partner.

New problems are inevitable with the legalization of same-sex marriage in Massachusetts, Canada and elsewhere, and the availability of civil unions for same-sex couples in Vermont and Connecticut. At the moment, Florida and most other states, as well as the federal government, refuse to recognize these relationships. Had the Schiavos been a same-sex couple that married in Massachusetts before moving to Florida, Michael Schiavo likely would not have been recognized as a spouse in the Florida courts. He would not have been the automatic heir, or the presumptive health care surrogate.

This is particularly problematic in a state, such as Florida, that attracts large numbers of migrants from other states. In the not-too-distant future we are likely to see a court test of the many “defense of marriage” statutes and constitutional amendments that have been enacted to deny recognition to same-sex couples. Those statutes may be vulnerable under the due process, equal protection and full-faith-and-credit clauses of the U.S. Constitution, and in some cases, under state constitutions as well.

In the meantime, same-sex and unmarried couples must be especially diligent about preparing estate-planning documents to obtain the results they want. Those documents should be updated promptly if the couple moves across state lines, or if the legal status of their relationship changes.

Know what you want. Estate planning is all about making choices that reflect your values, goals and priorities. Do you want to be maintained by machines if you are conscious but in considerable pain, with no hope of recovery? If you are unconscious? Do you want artificial feeding and hydration to be initiated or terminated under some circumstances? If so, what are those circumstances?

The Florida Department of Elder Affairs has published a helpful booklet titled Making Choices: Beginning to Plan for End-of-Life Care. It is available online at http://elderaffairs.state.fl.us/doea/english/LMD/EOL/eol.html, or you can call (850) 414-2000.

Communicate your wishes. Estate planning is not for you; it is for the people you leave behind. No documents can cover every set of circumstances. No legalese can help relatives carry out your wishes as well as you can, in your own words.

The Institute for Ethics at the University of New Mexico has developed a 12-page “Values History” form that you can fill out without a lawyer. It covers everything from funeral arrangements to your thoughts about independence and self-sufficiency. It is available online in Microsoft Word format at http:// hsc.unm.edu/ethics/pdf/values_history.doc, or printed copies can be obtained for $5 by writing to the Health Sciences Ethics Program, University of New Mexico, Nursing/Pharmacy Bldg. Room 368, Albuquerque NM 87131. The form is not copyrighted and can be reproduced freely.

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