Author’s note: This article is for educational purposes only. It should not be relied upon as personal legal advice, and the authors intend no attorney-client relationship. You should contact your own attorney for advice and assistance in drafting any legal documents.

Unfortunately, it often takes a tragedy to get people thinking and talking about life issues. Terri Schiavo’s plight captivated the world, and her battle for life and ultimate death has brought unprecedented media attention to the Catholic Church’s teachings on medical treatment, care and moral ethics for those who are very ill or at the end of their life.
However, some media descriptions of Church teachings in this area have been inaccurate or misleading. This is especially true with regard to legal documents such as advanced directives, durable power of attorneys, or living wills. More than once, we have felt like throwing our shoe at the television set.
For example, on one of the news programs, viewers were referred to a website for information on living wills, a website that is hosted by a pro-euthanasia organization. Obviously, this would be the last place to seek advice on a living will, and a grim reminder that we cannot rely on the media for advice on decisions as important as these.
While it is impossible to fully deal with this topic in one article, we hope to provide you with basic information about the options available. A short and informative guide is also available from the Respect Life Office entitled, “Going Home to the Father: A Catholic Perspective on End-of-Life Care.”
You can request a copy by calling 988-3755, or you can view it in its entirety on the web at
http://www.sfcatholic.org/respectlife/index.html.
Please remember that our comments in this article are directed toward South Dakota residents. The legal documents we discuss have specific legal meanings and are often dependent upon state laws. They are also separate and distinct from a last will and testament.
The most vital thing you must do, regardless of your age, is educate yourself. Remember that Terri Schiavo was in her twenties when she unexpectedly collapsed. A medical emergency can arise at any time, and you need to be prepared for the unfortunate event that you are unable to make health care decisions for yourself.
In general, you can do one of three things: (1) allow state statute to control who makes health care decisions for you; (2) execute a living will; or (3) execute a durable power of attorney for health care. “Advanced Directives” is a general term to describe legal documents that are intended to control if you are unable to make health care decisions for yourself. However, sometimes a living will or a durable power of attorney is entitled an “Advanced Directive,” so it is crucial to ensure that any document you execute does what you intend it to do.

When State Statute Controls
First, SDCL §34-12C-3, states that if no legal document has been executed, doctors shall look to the following order of persons to make health care decisions: the spouse, an adult child, a parent, an adult sibling, a grandparent or adult grandchild and then an adult aunt or uncle or adult niece or nephew. These individuals may or may not be the person you want making decisions for you for a variety of reasons.

Living Will
The most widely talked about document, especially by the media, is a “living will.” In general, a living will contains your wishes concerning your health care if you are unable to articulate those wishes yourself. Oftentimes you simply check from a list specific medical care that you want and leave blank medical care that you do not want. South Dakota law describes a living will as a “declaration” of what you want with regards to “withholding and withdrawal of life-sustaining treatment,” including “artificial nutrition and hydration”. SDCL §34-12D-2. In addition, a Living Will only becomes operative when two physicians determine that you are in a “terminal condition” and “no longer able to make decisions.” SDCL §34-12D-5.
Unfortunately, in spite of the large push for a living will, it has many deficiencies. First, it empowers the physician, not the patient or the patient’s family. The physician is left to interpret your desires based on what you have or don’t have checked in the document. The physician may be unfamiliar with your faith, values, and true wishes. And you and the physician may have very different interpretations of what a “terminal condition” or “life-sustaining treatment” is, or how it should be applied to you.
Second, a living will is limited in scope, and cannot possibly cover all of the potential medical circumstances that could arise. It is impossible to know ahead of time the information you would need to make a sound moral decision, and just as difficult to put those anticipated decisions in writing so that they are interpreted exactly as you intend.
Third, your family or friends have limited, if any, legal standing to interpret the language of a living will or to challenge a physician if they feel your wishes are being misinterpreted by the physician.
Finally, a living will does not address the many other health care decisions that must be made if you cannot speak for yourself, but do not have a “terminal condition” or are not in need of “life-sustaining treatment.”
For these and other reasons, Church leaders, ethicists, legal scholars, and doctors, advise against living wills, and instead recommend executing a durable power of attorney for health care.

Durable Power of Attorney for Health Care
A durable power of attorney for health care is a legal document that appoints someone called an “Attorney in Fact” to act on your behalf as your agent if you are unable to make decisions regarding your medical care. SDCL §34-12C-1. This document has many benefits over a living will.
First, it empowers you to make the decision of who will act for you. It is vital that this person be chosen very carefully since he or she can have the authority to make a broad range of health care decisions for you. This person will act as your advocate, so you must trust the person to carry out your wishes, even when under pressure from doctors, or other family members to do differently. You must also take the time to detail your desires to that person so that he or she is perfectly clear about what you want and don’t want.
Second, a durable power of attorney for health care becomes effective immediately upon your loss of decisional capacity. You do not need to be in a “terminal condition,” or in need of “life-sustaining treatment.”
Finally, you still have the opportunity to put language in the document itself to make your desires clear. For example, it is highly recommended that Catholics include a statement that it is your wish and intent to follow the moral teachings of the Catholic Church, and that you should receive the obligatory care our faith teaches we have a duty to accept.
Because you are putting your desires in writing, the language you use is crucial. While a physician will primarily look to the attorney in fact for advice on your care, they will also review any directives found in the legal document itself. Therefore, you must ensure that what you put in the document is consistent with what you share with the person who may become your attorney in fact, and also ensure that person understands what is in the document.
We encourage you to make an appointment with an attorney to discuss executing a durable power of attorney for health care. A clear and well-drafted document can give you and your family members an invaluable peace of mind. It is also an act of love to save your loved ones from the conflict and heartache that often arises when serious medical decisions need to be made, and family members disagree on what is appropriate.
The Respect Life Office has a sample durable power of attorney for health care for you to review when drafting your own. Please call 988-3755 for more information. Do not let Terri’s struggle be in vain. Learn from her, and take the step to make sure you are giving clear direction about your future health care.