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American Morning

Legal Tug-of-War Over Terry Schiavo's Life and Death

Aired October 27, 2003 - 07:36   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.


SOLEDAD O'BRIEN, CNN ANCHOR: Well, now to the legal tug of war over Terry Schiavo's life and death. Her husband Michael goes to court today, trying to reverse Florida Governor Jeb Bush's order to reinsert Terry Schiavo's feeding tube. The brain damaged woman is at the center of a bitter fight between her husband and her parents over whether to remove her from life support.
How can a family avoid this terrible situation?

Martin Shenkman is an estate planning attorney.

He joins us this morning.

Nice to see you.

MARTIN SHENKMAN, ATTORNEY: Good morning.

O'BRIEN: You know, we were just talking just moments ago about the small number of people who actually talk about this issue. And it's always surprising to me, especially for people who have kids who should have planned better and really don't. I mean very few people manage this.

Why do you think that is?

SHENKMAN: It's tough to deal with. No one wants to focus on death. No one wants to focus on the hard decisions you have to make. Look at the tragedy going on now.

O'BRIEN: They just didn't discuss it. Could a -- is it fair to say that it could have been avoided if there had been a discussion, a clear discussion involving everyone in the family and a written document?

SHENKMAN: They really should have done three things. They should have signed a health care proxy in which they designated an agent to make decisions. So if Michael had been designated as Terry's agent to make the decisions, the whole issue as between the parents and him may not have occurred.

The second document would be a living will where Terry could have expressed her wishes, such as if she's in a vegetative state not to have life support.

And the third is discussion. You really need to talk to people.

O'BRIEN: How much legal weight do these documents hold? Can they still, if you sign your living will saying I do not want to be in a vegetative state, if it comes to that, that you are in a hospital room and no longer able to really communicate your wishes, can there be a legal debate over what you've signed?

SHENKMAN: There can always be a debate, but if you've gone to the length of designating someone to make decisions, and if you've expressed your wishes fairly clearly, it's very unlikely that it's going to ever get to the point that this has.

O'BRIEN: Do you need to have both of those documents, do you think?

SHENKMAN: There really -- yes, you need both and they're really two separate things. One is designating someone to make decisions and the other is really setting forth the types of decisions you want made for you personally and the life decisions, funeral decisions and so on.

O'BRIEN: When should people in their lives -- my husband and I did this when we had kids. The first child we thought oh my goodness, this is something we have to tackle right now. Terry Schiavo was a very young woman when she was struck with this disease.

SHENKMAN: Yes.

O'BRIEN: What exactly -- when should people sort of start tackling this?

SHENKMAN: Few people at that age would have really thought about it. But I think one of the lessons from this is once you're an adult, 18, you really probably have to have documents.

O'BRIEN: That early?

SHENKMAN: If something happens, how is the decision going to be made for you?

O'BRIEN: So once you start to care about your decision-making.

SHENKMAN: And if you get married, I think you need to do it once you get married. You want to designate whether it should be your spouse or if it's a new marriage, perhaps you'd want to rely on your parents. But if you don't communicate those wishes, who's going to know?

O'BRIEN: Where do you get these documents from and can you go online and just print out a document?

SHENKMAN: These documents you can get, different states have them. There's different organizations that have them. The concern that I have is a lot of people are going to go online, print something that they've just found and think that really does the job. These things are not boilerplate. There's really tough decisions that have to be made and the online documents that you get, they're just not going to have the sophistication and the tailoring to really address your personal wishes. O'BRIEN: You need to sit down with an attorney.

SHENKMAN: More than an attorney. You need to talk to someone in your family to see how they feel, will they do it. You need to talk to a religious advisor if you have any religious preferences, to see if there's any religious implications, which there are. You probably should talk to a medical care provider to see what the terminology even means.

O'BRIEN: I see why people put it off. And yet it is possibly the most important decision you make in your life about your life.

SHENKMAN: It's one of the most important, yes.

O'BRIEN: Martin Shenkman, it's nice to have you.

Thanks for clarifying some of those issues for us this morning.

SHENKMAN: Thank you.

O'BRIEN: Appreciate it.

SHENKMAN: Thank you.

O'BRIEN: We should mention that Larry King is going to have an exclusive interview tonight with Terry Schiavo's husband Michael. That's at 9:00 p.m. Eastern time.

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 27, 2003 - 07:36   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
SOLEDAD O'BRIEN, CNN ANCHOR: Well, now to the legal tug of war over Terry Schiavo's life and death. Her husband Michael goes to court today, trying to reverse Florida Governor Jeb Bush's order to reinsert Terry Schiavo's feeding tube. The brain damaged woman is at the center of a bitter fight between her husband and her parents over whether to remove her from life support.
How can a family avoid this terrible situation?

Martin Shenkman is an estate planning attorney.

He joins us this morning.

Nice to see you.

MARTIN SHENKMAN, ATTORNEY: Good morning.

O'BRIEN: You know, we were just talking just moments ago about the small number of people who actually talk about this issue. And it's always surprising to me, especially for people who have kids who should have planned better and really don't. I mean very few people manage this.

Why do you think that is?

SHENKMAN: It's tough to deal with. No one wants to focus on death. No one wants to focus on the hard decisions you have to make. Look at the tragedy going on now.

O'BRIEN: They just didn't discuss it. Could a -- is it fair to say that it could have been avoided if there had been a discussion, a clear discussion involving everyone in the family and a written document?

SHENKMAN: They really should have done three things. They should have signed a health care proxy in which they designated an agent to make decisions. So if Michael had been designated as Terry's agent to make the decisions, the whole issue as between the parents and him may not have occurred.

The second document would be a living will where Terry could have expressed her wishes, such as if she's in a vegetative state not to have life support.

And the third is discussion. You really need to talk to people.

O'BRIEN: How much legal weight do these documents hold? Can they still, if you sign your living will saying I do not want to be in a vegetative state, if it comes to that, that you are in a hospital room and no longer able to really communicate your wishes, can there be a legal debate over what you've signed?

SHENKMAN: There can always be a debate, but if you've gone to the length of designating someone to make decisions, and if you've expressed your wishes fairly clearly, it's very unlikely that it's going to ever get to the point that this has.

O'BRIEN: Do you need to have both of those documents, do you think?

SHENKMAN: There really -- yes, you need both and they're really two separate things. One is designating someone to make decisions and the other is really setting forth the types of decisions you want made for you personally and the life decisions, funeral decisions and so on.

O'BRIEN: When should people in their lives -- my husband and I did this when we had kids. The first child we thought oh my goodness, this is something we have to tackle right now. Terry Schiavo was a very young woman when she was struck with this disease.

SHENKMAN: Yes.

O'BRIEN: What exactly -- when should people sort of start tackling this?

SHENKMAN: Few people at that age would have really thought about it. But I think one of the lessons from this is once you're an adult, 18, you really probably have to have documents.

O'BRIEN: That early?

SHENKMAN: If something happens, how is the decision going to be made for you?

O'BRIEN: So once you start to care about your decision-making.

SHENKMAN: And if you get married, I think you need to do it once you get married. You want to designate whether it should be your spouse or if it's a new marriage, perhaps you'd want to rely on your parents. But if you don't communicate those wishes, who's going to know?

O'BRIEN: Where do you get these documents from and can you go online and just print out a document?

SHENKMAN: These documents you can get, different states have them. There's different organizations that have them. The concern that I have is a lot of people are going to go online, print something that they've just found and think that really does the job. These things are not boilerplate. There's really tough decisions that have to be made and the online documents that you get, they're just not going to have the sophistication and the tailoring to really address your personal wishes. O'BRIEN: You need to sit down with an attorney.

SHENKMAN: More than an attorney. You need to talk to someone in your family to see how they feel, will they do it. You need to talk to a religious advisor if you have any religious preferences, to see if there's any religious implications, which there are. You probably should talk to a medical care provider to see what the terminology even means.

O'BRIEN: I see why people put it off. And yet it is possibly the most important decision you make in your life about your life.

SHENKMAN: It's one of the most important, yes.

O'BRIEN: Martin Shenkman, it's nice to have you.

Thanks for clarifying some of those issues for us this morning.

SHENKMAN: Thank you.

O'BRIEN: Appreciate it.

SHENKMAN: Thank you.

O'BRIEN: We should mention that Larry King is going to have an exclusive interview tonight with Terry Schiavo's husband Michael. That's at 9:00 p.m. Eastern time.

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