August 2005 Newsletter

TAKING CONTROL OF END-OF-LIFE DECISIONS
By Tom Oldfield

The recent bitter and protracted dispute involving Terry Schiavo has highlighted the importance of establishing an end-of-life plan and memorializing one’s end-of-life decisions to assure that one’s wishes will be carried out.  Both federal and state laws allow individuals to control their end-of-life decisions through Advanced Directives.  Washington state law recognizes an adult person’s “fundamental right to control the decisions relating to the rendering of their own health care, including the decisions to have life-sustaining treatment withheld or withdrawn in instances of a terminal condition or permanent unconscious condition.”

As attorneys, we frequently prepare two complementary documents for clients regarding end-of-life healthcare choices.  The first is an Advanced Directive (also known as a “Living Will”) which expresses the client’s specific wishes regarding end-of-life choices.  The second is a Durable Power of Attorney for Health Care which authorizes a representative to make end-of-life choices (or other medical decisions in the event the principal is incapacitated) for the principal if the person is unable to make his or her own decisions.  The statutory form of Advanced Directive sets forth the maker’s wishes regarding artificial life-sustaining treatment, and applies only in the event that the person is “in a permanent unconscious condition or a terminal condition.”  In addition to the statutory definitions of “life-sustaining treatment”, a person may make additions or deletions to those definitions, including choices regarding specific medical therapies, mechanical ventilation, dialysis, blood transfusions, and CPR or other resuscitative techniques.

The Advanced Directive is an expression of intent, not a grant of authority.  Thus, healthcare facilities and practitioners may refuse to participate in carrying out one’s wishes to withhold or withdraw life-sustaining treatment.  It was interesting to note at a recent seminar, however, that the medical community seemed to consider these directives more binding than many of the attorneys believed them to be.  These directives have strict signing formalities, both as to form and the relationship between the declarer and the witnesses.

The Durable Power of Attorney for Health Care appoints a representative, and perhaps a successor, to make health care decisions for the principal in the event that the principal is unable to make them for himself or herself.  It is important that the power be “durable” so that the power remains effective even if the principal becomes incompetent or disabled.  Otherwise, the power will terminate upon the principal’s incapacity, which is exactly when the power is needed. The breadth of “health care decisions” that the agent is empowered to make often includes medical care, treatment or non-treatment, residential placement, and related issues.  It can be tailored for the individual client so it is specific as to what the agent can and cannot approve or refuse, or it can rely entirely on the agent’s discretion in light of the principal’s perceived best interests and expressed wishes.  A Durable Power of Attorney for Health Care is particularly important if a person desires to specify a particular family member or a non-family member to make health care decisions.  In the absence of such express authority, a lifelong domestic partner may be precluded from any role in making decisions for the individual, or may even be denied access to the individual.  Even if the statutory hierarchy of spouse, children, parents, and then siblings matches the client’s wishes, the client may be more comfortable having specifically selected the person who will be making these decisions.

With modern medicine, it may be more likely than not that a person will find himself or herself in an end-of-life situation, or temporarily unable to make vital health care decisions because of accident or serious illness, without the ability to communicate his or her desires.  It is particularly important in the case of nontraditional family situations.

These documents are an important part of an overall estate plan.  With these and other estate planning documents, a person can be assured that his end-of-life wishes will be carried out, and that his or her assets will be transferred to the persons or entities that he or she intends should benefit from them in an efficient manner and with proper consideration given to tax consequences.

Oldfield & Helsdon, PLLC
1401 Regents Blvd., Suite 102
Fircrest, WA 98466
(253) 564-9500   FAX: (253) 414-3500    

                                   www.tacomalawfirm.com