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Spousal Heath Care Planning in Light of Terri Schindler-Sciavo
Jan L. Warner


In light of the debacle in Florida surrounding the out and in again tube feeding of Terri Schindler-Sciavo, married couples should take a hard look at who makes health care decisions for them should they become incapacitated and should their spouse be involved with another person.

For those of you who have not heard, Terri Schindler-Schiavo suddenly collapsed in 1990 and has had brain damage since them. She is kept alive by a feeding tube because she cannot eat or drink. Her family says that even though she has brain damage, she can move and breathe on her own. But because she had not signed a health directive, her husband had priority under Florida law to make her health decisions.

About $800,000 from a medical malpractice settlement was placed into a trust for Terri’s rehabilitation, and the rest went to her husband. Then Terri’s husband found another woman, and, in 1998, after he had a child with his girlfriend, Terri’s husband went to court to seek removal of Terri’s feeding tube. Terri’s parents and family fought the removal – and even offered to take her home with them. But, because her husband could not divorce her, he wanted her to die and would not back down. Her parents and family had to get permission from her husband to even visit with her. And to make matters worse, Terri’s husband is using Terri’s rehabilitation money to pay lawyers to unplug her feeding tube.

Despite what appears to use to be a clear conflict of interest, the court ordered removal of the feeding tube on October 15, 2003. But the Florida Legislature almost immediately passed emergency legislation that allowed the governor to sign an order reinserting the feeding tube six days later.

Which leads us to the protection that we believe married individuals should afford themselves to avoid a fate similar to Terri’s. First of all, most husbands and wives want their spouses to make their health decisions should they become incapacitated. If husbands and wives sign health care powers of attorney appointing their spouses, then they will continue to serve until removed for cause by court order after a difficult and expensive proceeding.

If husbands and wives do not sign health care powers of attorney, what is known in most states as the “adult health care consent act” gives spouses priority, meaning that they will make the decisions unless there is good cause to remove them. “Good cause” is determined by a Court Order after an expensive proceeding. In a case like Terri’s family faces, it appears that her husband has a conflict of interest and should not be serving as her fiduciary for any reason, financial or health-wise.

We believe that it would me much easier for married couples to avoid the necessity of court proceedings should a conflict of interest occur by placing clear language in their documents to prevent this type of situation. For example:
Believing at this time that my spouse shall have my best interests at heart, should I become incapacitated and be unable to make my health care decisions, I name, nominate, and appoint my spouse ____________ as my health care agent to make my health care decisions for me; provided, however, should my spouse be at any time romantically involved with another person, that relationship shall constitute an absolute conflict of interest in which event my spouse’s appointment hereunder shall be revoked and I name, nominate, and appoint ________________ as first alternate agent and _________________ as second alternate agent.

NOTICE: the above is for information purposes and not to be construed as legal advice or production of a legal document. We urge you to talk with a competent attorney in your state to produce a legal binding document for your state.

© 2003, Jan L. Warner

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