Richmond lawyer explains less than 20 percent of nation has living will

Posted at 11:13 PM, Feb 17, 2014
and last updated 2014-02-18 00:34:35-05

RICHMOND, Va. (WTVR)--Craig Turner and Suzanne Gwathmey still laugh when they recall the day Craig proposed. It was New Years Eve , 2003.

“I opened the door and then I asked her to marry me,” said Craig. “And I told her to hurry up and said yes because my knees were killing me on the concrete.”

They exchanged vows ten months later in Byrd Park; promising to stay together until “death do they part.”

Far off in the future, they hope, is a moment for which they’ve carefully planned for, an advanced medical directive or living will.

It’s the document they keep in this binder that spells out in writing their final wishes if they’re incapacitated or declared brain dead.

“I just knew as a planner and organizer that we needed to get that done,” said Suzanne.

Still, Suzanne said the process Suzanne made them tear up as they discussed it in their lawyer’s office.

“Because the reality is death,” said Suzanne. “One of us may not be here for the other.”

They were recently reminded of how suddenly it can happen as they read and watched reports about Marlise Munoz, the pregnant Texas woman who was declared brain dead but kept on life support to protect her fetus.

Munoz was 14-weeks pregnant when she was found unconscious in her home November 26, 2013.

Although she did not have a written advanced directive, Munoz's husband said she had been clear, she did not want to be kept on any type of life support device like a ventilator.

But John Peter Smith Hospital in Fort Worth refused to take her off machines, citing a Texas law requiring it to continue treating a pregnant patient, even after they've been declared clinically dead.

Right now 12 states have laws that automatically invalidate a pregnant woman’s advanced medical directive, Virginia is not one of them.

Health care attorney Nathan Kottkamp said that’s why it’s unlikely Virginia would have a case similar to Marlise Munoz.

“We do not have an exception in our health care decisions act for pregnant patients,” said Kottkamp.

But Kottkamp said that’s not the case for someone with a mental illness.

In the 2009 General Assembly session, Kottkamp said lawmakers expanded state law to allow patients to put down their wishes for mental health care, a psychiatric advanced directive.

However, there are limits to what they can request.

“So you can’t have a written advanced directive that said ‘I never want to be admitted to a mental health hospital no matter what crisis I’m in,’” said Kottkamp.

“We can’t allow that from a public policy perspective.”

Experts like Kottkamp said a majority of people never talk to their relatives about death and dying.

“So few Americans have advanced medical directives,” said Melanie Lee.

Richmond attorney Melanie Lee specializes in estate planning which includes writing an advanced directive. She said less than 20 percent of people in the country have one.

“Having that conversation about what really matters is important,” said Lee.

Lee had that conversation with her mother before she died.

Her mother, Barbara was declared brain dead in 2013 and was not put on life support because she put those instructions in writing.

“But my mother was very clear about her wishes. She would say, I don’t want to lay there like a vegetable,” Lee said.

Lee helped Craig and Suzanne write their advanced directive.

The couple said, like Lee’s mother, they want their relatives to know when that time comes they can let go.

“If the hospital said it’s time to let go and the cardiologist said it’s time to let go and family doctor agrees, then that will be it,” Suzanne said.

Kottkamp is such a big proponent of having an Advanced Medical Directive that he started Healthcare Decision Day in Virginia in 2006. It became a nationwide focus two years later.

April 16  is a day set aside to inspire and educate people about the importance of advanced care planning.

Click on this link for information about National Healthcare Decision Day and writing an Advanced Medical Directive: