Do you want to create a living will?

If you believe the polls in the Terry Schiavo case, most Americans think politicians have no business mucking about in the agonizing decision over when to "pull the plug." Most of us want to keep the matter in the family. Ideally, we want to call our own shot, relieving even our closest loved ones of having to make the ultimate decision.

Sadly, Terry Schiavo's failure to execute a "living will," sometimes called an "advanced directive" or "health care directive," opened the door for family members, the Florida governor, that state's legislature, Congress and the president to second guess what Ms. Schiavo's husband, Michael, said was her wish — the same wish that almost every one of my clients have expressed in writing: withhold artificial life-sustaining treatment if I am in a permanent unconscious or persistent vegetative state.

How can you call your own shot? The answer is simple: execute a living will now, while you have mental capacity to do so. The living will is recognized in law. Idaho's statute is called the Natural Death Act and it's found at Chapter 45 of Title 39 of the Idaho Code. The living will tells your family and physician what you want to happen when all hope is gone. A living will form is set out in the statutes of most states including Idaho and Washington.

The forms are widely available at doctors' offices, hospitals, office supply stores, and online. You can look up the statute at the library and copy the form word for word. Lawyers usually charge a modest fee to draft a living will. If you do your own, remember the law requires that two people witness your signature and declare that you are of sound mind. Failure to properly execute the directive could ultimately defeat your best intention, or at least open the door to legal wrangling.

The living will is only effective in a very specific circumstance. First, you are unable to communicate with the doctors. Second, two doctors have found you are in a terminal condition, in a permanent unconscious state, or in a persistent vegetative state, like Ms. Schiavo. And, three, the doctors have agreed that the life-sustaining procedures are only prolonging your life artificially; that without such procedures your death is "imminent."

Hydration and Nutrition

It is essential that the living will express your wishes about artificial delivery of nutrition and hydration. Some of my clients joke about this choice, but it is really a serious matter, as the Terry Schiavo case demonstrates. Ms. Schiavo was breathing on her own. What sustained her life was the feeding tube. If you choose to have hydration and nutrition, you could inadvertently defeat your living will.

So, I tell my clients this: if you want death to come quickly, shortening the time the family has to agonize over your condition, then choose no water and no food. By making this choice, you will die even if you are breathing on your own. If you choose to have nutrition and hydration provided by artificial means, you run the risk of surviving in a persistent vegetative state for years and years, as did Ms. Schiavo.

Unfortunately, merely executing a living will does not prevent legal wrangling over whether you are, in fact, "terminal."

In the Schiavo case, her parents took to trial the question of whether their daughter was in a persistent vegetative state. And, despite the medical evidence presented, Ms. Schiavo's parents have never accepted the legal conclusion that their daughter was unaware of her surroundings.

Personally, I trust that no doctor would sign a document declaring me in a persistent vegetative state unless I was, in fact, in that condition. However, if you are not as trusting as me, you may not want to sign a living will at all.

The Schiavo case brings up another issue. Should a family member, or especially a health care "agent" have authority to delay the implementation of your living will?

Typically people who have a living will also have a durable power of attorney for health care, giving a spouse or other trusted person the right to make health care decisions when the principal can not "rationally" communicate with the doctor.

This power of attorney is important when you are unconscious — say from a vehicle collision — and treatment decisions need to be made.

The statutory living will form does not expressly address the circumstance where a designated health care "agent" might use his or her authority to order unnecessary tests, engage in protracted legal action, or otherwise obstruct the withdrawal of life-sustaining procedures. This question came up with two of my clients in a most benign way. One spouse asked the other, "What if God called me to keep you alive?" Would the spouse be justified in that case to delay the implementation of the living will?

Of course, your health care "agent" is supposed to follow your wishes as expressed in your living will. But, you can imagine the circumstance where the physician is looking at the living will that says "pull the plug" but the health care agent is saying "don't do it now" In our litigious world, I expect the physician would bow to the health care agent and the matter might well wind up in court.

So, what I'm doing is giving my clients an additional choice in their living wills. The client can state clearly in the directive what direction the doctor should follow: his or her direction to withdraw life-sustaining treatment or the health care agent's decision to maintain treatment. Most of my clients elect to give precedence to their directive.

Executing a living will may not be as easy as it seems. After consideration, you may not want a living will , preferring to leave the matter to God or to your family because you believe they are in the best position to decide at the time. On the other hand, you may feel it is better to execute a living will thereby saving your family from having to decide whether to maintain treatment at great financial and emotional cost, or to allow you to die a natural death.

William M. "Bill" Berg is an estate planning attorney in Sandpoint, Idaho. Residents who are interested in obtaining a "living will" form can pick one up at Life Care.