It is an understatement to say that we live in uncertain times. As I write this, we are nearing the end-date of Governor Evers’ first Safer at Home Order and have just learned of his second which is set to run through May 26. So, you might be reading this at a time when businesses are slowly reopening and families are reuniting. We hope so. Without a crystal ball, I can’t tell you what we’ll be doing here at Duxstad & Bestul, in June, except to reassure you that, in mid-April, we’re open for business and prepared to do anything we can to help our clients. Our office doors are locked for the safety of our staff, and clients, but we all remain available to meet with clients in person on urgent matters and to handle the non-urgent matters by phone or even video conferencing, using software like Zoom.   

Understandably, we’ve had quite a few calls about estate planning, which is something we encourage even in the best of times. I’ve been able to work with my clients over the telephone and through email to assess their needs and prepare documents for their review. I recently became an electronic notary, meaning I can notarize documents via the web, without having to meet face-to-face. That works well for real estate documents and some estate planning documents, but wills still require personal interaction. For those looking to sign documents like a will immediately, we can handle that safely with curb-side meetings. All this represents an attempt to remain functional, even as we acknowledge that it’s not the normal we want. It’s a little like estate planning itself: something we ought to do, but nothing that anyone enjoys.  

But here’s something to remind us that even when somber tasks must be done, there can be an element of fun: Somewhere between “you’d have to see it to believe it” and “truth is stranger than fiction” comes the story of Benjamin Schreiber, a convicted murderer currently bedding at the Iowa State Penitentiary. Mr. Schreiber, who’s clearly living, claims that he’s fully served his life sentence without parole. This, he argues, is because five years ago he wasn’t living. In 2015, he collapsed in his cell with septic poisoning and it wasn’t long before his heart stopped beating. Officials rushed him to the hospital where doctors literally brought him back to life. Altogether, they had to restart his heart five times before it finally kept beating. Mr. Schreiber reasons that his life sentence ended when his life did, and now he’s entitled to live out his second life as a free man.

Forget the bad luck in being reincarnated exactly as you were: same convicted murderer, same tiny prison cell, same orange jumpsuit. To make matters worse, the Iowa Court of Appeals rules that your life sentence carries on until you’re not just merely dead, for a little while. You have to be really quite sincerely dead, for keeps and forever. In short, Benjamin Schreiber remains at the Iowa State Penitentiary until death do them part, permanently.

First, bravo to Mr. Schreiber (or his attorney), for crafting a legal defense more creative than anything seen in Iowa since Harold Hill pitched a marching band to the troubled folks of River City. Secondly, though, and more to the point, I’m left wondering if Mr. Schreiber, given the choice and facing a lifetime of incarceration, might have preferred staying dead when his heart stopped beating in 2015. And that brings us back to the seriousness of the issue. Sometimes, because of age or illness, death becomes the preferred alternative to ongoing pain or physical limitation. In fact, without encouraging it along, there are ways to insure that death can occur, at least without the administration of unwanted heroic life-sustaining measures. 

One is a standard document we advise clients to prepare when they approach us for estate planning help. Wisconsin’s Declaration to Physicians form, or Living Will, is an important means of insuring that death occurs on your terms, at least when it occurs under two specific circumstances. 

The first is when death is imminent as a result of a terminal condition, either by illness or accident. The key here is that death is imminent, not expected three or six months later. The form asks whether you want feeding tubes used to prolong the dying process under these circumstances. If you decide no, then feeding tubes will not be administered. 

The second imagines you in a persistent vegetative state, which means that you have suffered what doctors consider a complete and irreversible loss of cognitive functioning, or activity in your cerebral cortex. As a result, while your heart may still be beating, you have no cognitive awareness of life. In this context, “persistent” is typically interpreted to mean that you have been in this condition for at least 30 days. Again the form asks whether you want feeding tubes, but also other life sustaining procedures used if you are in this condition. And again, if you decide no, then those measures will not be taken.

In fact, it’s not that the measures won’t be taken: they can’t be taken. By law, the instructions you leave for your physician in a Living Will must be followed, even if family members or agents under a Health Care Power of Attorney are instructing otherwise. Also, while the examples given here imagine that you have refused feeding tubes and life sustaining procedures, you can just as easily use the form to assert your preference for those measures. In that case, doctors would be obligated to administer the care even if family members felt differently. 

The second measure that’s available is a Do Not Resuscitate Order, which addresses the administration of CPR. It provides that emergency providers will not: (1) perform chest compressions, insert advanced airways, administer cardiac resuscitation drugs, provide ventilator assistance, or defibrillate. A person under an active DNR Order wears a bracelet to let care providers know to withhold the treatment measures listed above. Only the bracelet will work in this respect. Lawyers cannot secure a bracelet for their clients. A client’s treating physician will carefully review the available treatment options with the patient (or the patient’s health care agent) and then, if the physician determines it appropriate, complete the necessary form for the patient’s signature. The physician must also sign, and then a plastic or metal bracelet will be ordered.

All estate planning is designed to provide a sense of security for uncertain times, whenever and however they may appear. A Living Will and DNR Order are two means toward that goal. They not only ensure that your wishes are respected; they also help loved ones make the difficult end of life decisions that sometimes fall to them. To discuss these documents, estate planning in general, or any other issue of concern in these challenging times, please reach out to our office at any time. We remain available to help in any way we can and hope that you remain safe and well until we meet again.