Issues in Eldercare Law
By Attorney Helene V. Wenzel
Terri Schiavo raises complex and emotionally laden issues concerning who has control of continuity and quality of a life. As an Elder Law attorney, I am all too aware that such scenarios are becoming more common as our population ages and people’s lives can be and are maintained long after quality of life has, for all intents and purposes, ended.

I currently have a client, the conservator of an 80-year-old
widowed parent who became a conservatee a little more than three
years ago, following a cerebral hemorrhage.

The parent was hospitalized and rapidly lost all capacity to take care of health, property or finance matters. As a result of the hemorrhage, speech and all forms of communication ceased. It was necessary to put a conservatorship in place in order to manage all of these aspects of life.

Other than the fact that the conservatee was moved across the
Country to be near the conservator, the first two years of the
conservatorship were fairly uneventful; the conservatee was placed in a skilled nursing facility with a very good and well-deserved reputation.

With minor changes in status, the conservatee’s health remained the same. However, in these last few weeks, even swallowing has become very difficult; food has lodged in the throat and brief hospitalizations have been necessary. The conservatee is no longer able to consume solid foods. Liquid nutrition is all that is available and even that is becoming more difficult to administer.

The next logical step would be the insertion of a feeding tube. However, unlike in the Schiavo situation, this conservatee had executed a living will as part of a comprehensive estate plan, well before being rendered quickly and totally incapacitated by the cerebral hemorrhage.

In acknowledging and following the wishes set forth in this living will, insertion of a feeding tube is not and never was an option. About two weeks ago, a meeting was held between my client and the nursing home’s end-of-life committee.

The committee will continue to honor the conservatee’s end of life wishes that life not be extended by heroic measures or artificial means. Of course, the nursing home will see to it that the conservatee is made as comfortable as possible at all times. The conservator is making final preparations based on the conservatee’s known wishes. Distinct from the media and extraordinary government and judicial focus on Terri Schiavo before her death, what has been and should be the choice of an individual and a private family matter will remain just that. However, without powers of attorney for health care (in California, anyone with capacity may execute an Advance Health Care Directive or a Living Will), a situation similar to Terri Schiavo�s is all too likely to occur.

What has happened to Terri and her family is tragic. It will have served a larger and noble purpose if it sends healthy people off to an attorney’s office (or a stationery store) to execute these very important documents. Such documents will not only ensure that their wishes concerning end-of-life care will be followed; they would also save their families the anguish and expense. Thousands of patients suffer similar conditions to Terri Schiavo�s, but none will share the same fate if they address end-of-life issues before they are no longer able.

About Helene V. Wenzel:

As the current Chair of the Elder Law Section of the Bar Association of San Francisco, and a member of the National Association of Elder Law Attorneys (NAELA) and the Northern California NAELA Chapter, Helene speaks about elder law concerns to professionals, including attorneys at Continuing Education of the Bar (CEB) seminars on “Estate Planning for the Terminally Ill,” and attorneys and financial planners at the San Francisco seminar of the National Business Institute (NBI) on “California Elder Law.” Helene will be lecture on conservatorships on Friday, April 15, from 1 p.m. -2 p.m. at the Institute on Aging, 3rd Floor, East Wing Conference Room 3330 Geary Blvd., San Francisco, CA 94118