By JODI SOKOLOWSKI
Buffalo Law Journal

When Albert Devlin, a lieutenant with the Buffalo Police Department, fell into a vegetative state as a result of his cancer, his brother, Daniel Devlin, asked doctors to try to keep him alive by putting him on a breathing tube.

As his brother's appointed health-care proxy, Daniel was authorized to execute medical orders on Albert's behalf. However, the proxy form didn't address which specific medical procedures he wanted, or didn't want, performed on him, even though Albert had told his family he didn't want to be kept alive if in a vegetative state.

Albert Devlin's wife, Suzanne, hired Hurwitz & Fine PC attorney Ed Robinson to take Daniel Devlin to court to remove him as the proxy agent. After six witnesses testified in court that Albert Devlin had expressed his wish not to be kept alive through artificial means, state Supreme Court Justice Hon. Russell Buscaglia removed Devlin's brother as agent and named his wife instead.

"There's a provision under the law which states if an agent fails to act in accordance with the principal's wishes, a family member can undertake a proceeding to have the health-care agent removed," said Robinson. "So that's what we did, and ultimately we were successful.

"The witnesses testified that ... (Devlin) said, ‘If something happens where there's a decision with life support, I don't want to be like Terri Schiavo or even like Christopher Reeve. I don't want to be kept artificially alive,' " Robinson explained.

Twelve days after doctors removed his feeding tube, Devlin, 55, died Aug. 21 in Roswell Park Cancer Institute.

Situation could have been avoided

If Devlin had filled out a living will specifically stating what medical orders he wanted, or didn't want, executed, the emotional family dispute may never have happened, Robinson said.

"If he included language of ‘I don't want artificial hydration or nutrition,' we wouldn't have had to go through this case," he said.

While a health-care proxy identifies an individual agent to make medical decisions on behalf of another person, a living will goes one step further by specifically listing what medical procedures a person wants and doesn't want performed. The two forms go hand in hand.

"The two are complimentary. Think of a living will as a road map; it describes in general terms what your wishes are," said Lisa McDougall, a partner at Phillips Lytle LLP who is also chair of the Bar Association of Erie County's Health Care Law Committee.

The living will can even address hypothetical situations, such as authorizing removal of life support if the patient has been intubated for 30 days and hasn't start breathing on his or her own by that time.

"Not everybody feels that (extreme medical aid) is a black-and-white decision. There are shades of gray. Whatever that decision is, it should be reduced to writing," Robinson said. The Devlin case, he explained, "basically pitted all family members against the agent, because the agent stood alone in his belief that life support should have been continued."

Be careful about being too specific, McDougall warned, because you may not leave the agent enough flexibility.

"You may want to leave discretion concerning certain circumstances," she said.

Another form, the medical orders for life-sustaining treatment (MOLST), identifies specific step-by-step treatment that is discussed with and signed by an individual's doctor, said Bruce Reinoso, a partner at Magavern Magavern Grimm LLP who is past chair of the BAEC's Elder Law Committee.

"MOLST can be an important tool when an individual doesn't have family and friends," he said.

Be prepared

That's why it's important for people of all ages and states of health to fill out the health-care proxy and living-will forms in the presence of at least two witnesses. It's also crucial for the individual to fully describe his or her wishes to immediate family members to quell potential disputes between them.

The holiday season is a good time to have that discussion, lawyers advise. "Everyone is together and has an opportunity to see what one's wishes are," Robinson said.

Having a living will may help prevent families from guessing or arguing about what their loved one desires.

"People may challenge the actions of an agent because of their own beliefs as (opposed) to what the principal wanted," McDougall said, "but having a living will would make that much more difficult."

While it's not necessary for a lawyer to review the forms, attorneys can identify holes that may need to be filled in. The attorney can keep a copy of the forms on file, as should the family doctor, the agent, an alternate agent, the individual and perhaps even a relative.

"I've received several calls from frantic family members saying, ‘I know Mom signed a health-care proxy, but we can't find it. Can you fax it to the hospital?' " Robinson said.

Reinoso also advises people to sign Health Insurance Portability and Accountability Act (HIPPA) authorization forms so that their agents and certain family members can request and obtain their medical records.

"It doesn't spring into effectiveness until the individual loses (his or her) ability to converse," he explained.

"I can tell my doctor what I want, but if my wife needs to call my doctor, he doesn't have legal authority to talk to my wife (without the authorization)."