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Interview With Donna Bergeson

Aired October 23, 2003 - 14:31   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


KYRA PHILLIPS, CNN ANCHOR: The latest legal moves in the tragic case of Terri Schiavo have once again raised the issue of living wills. What happens if you, like Terri Schiavo, don't have one and find yourself in such an unfortunate situation? Can it help you to avoid a similar family tug-of-war?
Joining us now, Donna Bergeson, a health care attorney here in Atlanta. Sort of, I guess, trying to sort this out. A couple of things we were talking about earlier this morning. Once we get married, custody automatically goes to our spouse. Is that right? No longer are parents in charge?

DONNA BERGESON, HEALTH CARE ATTORNEY: In a sense, it's custody. Once you get married if you're no longer able to speak for yourself, usually those decision will go to your spouse. So if it's in the case a health care decision and you arrive at a hospital and you're unconscious and you can't consent for yourself, then your spouse will be the one that will take over and consent for you. When you're a minor, your parents take care of that for you.

PHILLIPS: OK. So this whole situation could have been avoided. Two things you and I were talking about -- first of all, one possibility is he could have just said, here you go, Mom and Dad. You can have custody, handle this how you -- I don't think it's what she wanted, it's not what I wanted, but go ahead. And then would we even be in the whole media frenzy right now?

BERGESON: No, that's correct. Under most law, the laws of most state, once a person is incapacitated and can't speak for themselves, the right to speak for health care decision goes to their spouse. Now, if the spouse is not available or chooses not to, usually the next in line to make those decisions are the parents.

PHILLIPS: OK.

BERGESON: But if I might add, even if you don't have a parent or a spouse, you can always create what's called a durable power of attorney for health care. And in that, you name who you want to make your decisions for you if you are unable.

PHILLIPS: All right so let's lay out then -- we actually put together a graphic here on exactly what we should do right now, learning from this situation.

No. 1, get a durable power of attorney and let that person know your wishes. And that can be anybody, anyone you trust and love. BERGESON: Absolutely. Much like a financial power of attorney where you give someone the right to make financial decision for you if you are not capable. This is a financial -- a health care power of attorney and it enables someone else to make the decisions about your health care when you're not able to do that.

PHILLIPS: OK. And No. 2, get a living will. Tell us exactly what a living will is.

BERGESON: Sure. A living will is usually prescribed by state statutes and it identifies courses of action you want someone to take if you are not able to make -- if you're not able to respond.

So the living will, in Georgia, for example, says, if I'm incapacitated, I either want you to withhold life support or I don't want you to withhold support life support. Or I either want you to withhold nourishment or hydration or I don't want you to withhold. So you give very, very specific direction.

Usually, I would recommend someone do both. You have a power of attorney where you name someone who is able to make all kinds of health care decision for you. And then you prepare a living will where you give direction to your agent about what the options are and what your preferences really would be.

PHILLIPS: Those two -- that doesn't necessarily cover organ donation though, right?

BERGESON: Absolutely. And the third thing you need to do is talk with your agent and discuss with them what your thoughts are on organ donation because a lot of times, the care that a health care provider will give you will depend on whether they're trying to preserve the organs. And it may make a big difference in how a health care provider would treat someone that is comatose.

PHILLIPS: Some people might be saying, OK this all sounds great, Donna, but this is so expensive to get an attorney, lay all this out, all the hour involved. Are there ways to avoid a costly living will scenario? Can you do it online?

PHILLIPS: Absolutely. It is not expensive. In fact if you go into the hospital under Medicare conditions of participation, and most accrediting organizations for hospitals, they will ask you if you have a living will or if you have a durable power. If you say no, they'll give you a form.

So when you're going into the hospital to have some type of surgery, no matter how basic it is, if you're going in for a very simple surgery, they'll ask you if you have one, or if you want one.

If you don't have one -- if you're not going into the hospital and you're not necessarily thinking in those term, most estate planning lawyers -- there are several documents that are key to any estate planning. You've got your will, a financial power of attorney, and a durable power of attorney for health care. They're basic documents. They are not hard and they're not expensive. PHILLIPS: And just look at the situation. You just never know what will happen. Get it done now.

BERGESON: Absolutely, no time like the present.

PHILLIPS: Donna, thank you so much.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com







Aired October 23, 2003 - 14:31   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
KYRA PHILLIPS, CNN ANCHOR: The latest legal moves in the tragic case of Terri Schiavo have once again raised the issue of living wills. What happens if you, like Terri Schiavo, don't have one and find yourself in such an unfortunate situation? Can it help you to avoid a similar family tug-of-war?
Joining us now, Donna Bergeson, a health care attorney here in Atlanta. Sort of, I guess, trying to sort this out. A couple of things we were talking about earlier this morning. Once we get married, custody automatically goes to our spouse. Is that right? No longer are parents in charge?

DONNA BERGESON, HEALTH CARE ATTORNEY: In a sense, it's custody. Once you get married if you're no longer able to speak for yourself, usually those decision will go to your spouse. So if it's in the case a health care decision and you arrive at a hospital and you're unconscious and you can't consent for yourself, then your spouse will be the one that will take over and consent for you. When you're a minor, your parents take care of that for you.

PHILLIPS: OK. So this whole situation could have been avoided. Two things you and I were talking about -- first of all, one possibility is he could have just said, here you go, Mom and Dad. You can have custody, handle this how you -- I don't think it's what she wanted, it's not what I wanted, but go ahead. And then would we even be in the whole media frenzy right now?

BERGESON: No, that's correct. Under most law, the laws of most state, once a person is incapacitated and can't speak for themselves, the right to speak for health care decision goes to their spouse. Now, if the spouse is not available or chooses not to, usually the next in line to make those decisions are the parents.

PHILLIPS: OK.

BERGESON: But if I might add, even if you don't have a parent or a spouse, you can always create what's called a durable power of attorney for health care. And in that, you name who you want to make your decisions for you if you are unable.

PHILLIPS: All right so let's lay out then -- we actually put together a graphic here on exactly what we should do right now, learning from this situation.

No. 1, get a durable power of attorney and let that person know your wishes. And that can be anybody, anyone you trust and love. BERGESON: Absolutely. Much like a financial power of attorney where you give someone the right to make financial decision for you if you are not capable. This is a financial -- a health care power of attorney and it enables someone else to make the decisions about your health care when you're not able to do that.

PHILLIPS: OK. And No. 2, get a living will. Tell us exactly what a living will is.

BERGESON: Sure. A living will is usually prescribed by state statutes and it identifies courses of action you want someone to take if you are not able to make -- if you're not able to respond.

So the living will, in Georgia, for example, says, if I'm incapacitated, I either want you to withhold life support or I don't want you to withhold support life support. Or I either want you to withhold nourishment or hydration or I don't want you to withhold. So you give very, very specific direction.

Usually, I would recommend someone do both. You have a power of attorney where you name someone who is able to make all kinds of health care decision for you. And then you prepare a living will where you give direction to your agent about what the options are and what your preferences really would be.

PHILLIPS: Those two -- that doesn't necessarily cover organ donation though, right?

BERGESON: Absolutely. And the third thing you need to do is talk with your agent and discuss with them what your thoughts are on organ donation because a lot of times, the care that a health care provider will give you will depend on whether they're trying to preserve the organs. And it may make a big difference in how a health care provider would treat someone that is comatose.

PHILLIPS: Some people might be saying, OK this all sounds great, Donna, but this is so expensive to get an attorney, lay all this out, all the hour involved. Are there ways to avoid a costly living will scenario? Can you do it online?

PHILLIPS: Absolutely. It is not expensive. In fact if you go into the hospital under Medicare conditions of participation, and most accrediting organizations for hospitals, they will ask you if you have a living will or if you have a durable power. If you say no, they'll give you a form.

So when you're going into the hospital to have some type of surgery, no matter how basic it is, if you're going in for a very simple surgery, they'll ask you if you have one, or if you want one.

If you don't have one -- if you're not going into the hospital and you're not necessarily thinking in those term, most estate planning lawyers -- there are several documents that are key to any estate planning. You've got your will, a financial power of attorney, and a durable power of attorney for health care. They're basic documents. They are not hard and they're not expensive. PHILLIPS: And just look at the situation. You just never know what will happen. Get it done now.

BERGESON: Absolutely, no time like the present.

PHILLIPS: Donna, thank you so much.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com