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Natasha Richardson Dies After Ski Accident: The Need for a Living Will and Durable Power of Attorney

CNN reports that Natasha Richardson, the award-winning actress and wife of Liam Neeson, has passed away after a ski accident. The news may have many people understandably wondering about the fragility of life and health. After all, Natasha Richardson was relatively young at 45, and by all accounts healthy, vibrant and full of life. Adding to that, she suffered the fall while skiing on a beginner's slope. The accident has renewed calls for helmets while skiing, but while there may be merit to those suggestions, some suggest that a helmet might not have made any difference.

Although questions about whether Richardson's death might have been prevented are already being asked, the circumstances leading up to her tragic passing, particularly her apparent incapacitation and the decision to take her off of life support, do emphasize the importance of taking on a task that people often overlook or put aside for later. A FindLaw poll conducted last year indicated that nearly 60 percent of Americans don't have a will.

Hand in hand with that fundamental problem, which affects a person's assets and their children, is the fact that the same individuals probably make no legal provision for what would happen if they become incapacited and unable to express or communicate their wishes. Aside from leaving their own health care desires unfulfilled in the event of a tragedy, this can also leave a person's family to make difficult choices in an already emotional and stressful situation. In a worst-case-scenario, such uncertainty can end up in drawn-out legal battles over a person's fate.

There are a variety of legal tools that can be used to address the issue, but two in particular stand out. First, a living will, which can also go by the name of a healthcare directive or directive to physicians, is a document that expresses a person's desires and preferences about medical treatment in case he or she becomes unable to communicate these instructions during terminal illness or permanent unconsciousness. Living wills are allowed in all states, but sometimes they must follow specific formalities to be effective. If valid, a living will binds health care providers to its instructions.

The second tool people may have heard about is a durable power of attorney for health care or health care proxy. A durable power of attorney for health care is somewhat similar to a living will, but functions to actually put the health care decision-making power in the hands of another person (an "attorney-in-fact"). The document can then direct the attorney-in-fact to carry out a living will's instructions, or alternatively, use their own judgment in following a course of action. Unlike a living will, a durable power of attorney does not depend on terminal illness or permanent unconsciousness to become effective, but instead is used if the person is unable to make their own healthcare choices (permanently or otherwise).

In the event a loved one is stricken with a sudden illness or tragic accident, the last thing a family probably wants to deal with is any arguments over health care decisions. The use of a living will and a durable power of attorney are good ways to keep what is already a difficult time from becoming even tougher.

• CNN: Natasha Richardson dies after ski fall
• NY Times: Natasha Richardson, Stage and Film Star, Is Dead at 45
• FOX News: When Is the Right Time to Turn Off Life Support?
• State Laws: Living Wills (FindLaw)
• Healthcare Proxies and Living Wills (provided by Frederick J. Martorell Esq, PC)
• Undiagnosed and Misdiagnosed Closed-Head Injuries (FindLaw)
• Estate Planning Forms (FindLaw)
• Common Types of Brain Injuries (FindLaw)

Full post as published by FindLaw's Common Law on March 19, 2009 (boomark / email).