2011 - Health Care Directives (Leimberg #1 - Redline)

AN ESTATE PLANNER’S ROADMAP TO THE VALLEY OF THE SHADOW OF DEATH: HEALTH CARE DIRECTIVES FROM RELIGIOUS PERSPECTIVES. FEAR NO EVIL.

Wendy S. Goffe

Graham & Dunn PC

Pier 70, 2801 Alaskan Way, Suite 300

Seattle, Washington98121-1128

(206) 340-9633 (direct)

Wendy S. Goffe is a shareholder with the law firm of Graham & Dunn PC, Seattle, Washington. She is a Fellow of the AmericanCollege of Trust and Estate Counsel (ACTEC) and a member of the ACTEC Publications Committee. She has a comprehensive estate planning practice that involves all aspects of estate planning for high net worth individuals and families, advising both individuals and charitable organizations concerning planned giving, probate, and trust administration. Wendy has an extensive and constantly updated analysis of the legal and tax implications of same-gender and other non-traditional family relationships, and an active part of her practice involves this work. She is a former Adjunct Instructor at SeattleUniversityLawSchool. She is currently a member of the YWCA Planned Giving Committee, The Nature Conservancy Planned Giving Committee, The Seattle Foundation Professional Advisory Council, and the Children’s Legacy Council of the Children’s Hospital Foundation. She is a past member of the ABA Taxation Section Community Property Comment Project, the Executive Committee of the Estate Planning Council of Seattle, the Acquisition Committee of the TacomaArt Museum, the Executive Committee of the WSBA Real Property, Probate and Trust Section, and the Ethics Committee of Valley Medical Center. She is also a past member of the Board of Directors and Grants Committee of The Women’s Endowment Foundation, a supporting foundation of the Jewish Community Endowment Fund, Seattle, Washington.

September2011

CONTENTS

Page

I.Introduction......

II.Health Care Directives - Generally......

A.Background......

B.Definitions......

C.Five Wishes......

III.Other Documents......

A.Medical Powers of Attorney......

B.Mental Health Directives......

C.Ethical Wills......

D.Physician Orders for Life Sustaining Treatment......

E.Death With Dignity Directives......

F.Organ and Tissue Donation......

IV.Storing Documents......

V.Religious Perspectives......

A.Judaism......

B.The Orthodox Christian Churches......

C.Catholicism......

D.Protestantism in General......

E.Lutherans in America......

F.Episcopal Church......

G.Presbyterian Church......

EXHIBIT A: TERMINOLOGY......

EXHIBIT B: MODIFICATIONS TO THE DIRECTIVE FOR ORTHODOX JUDAISM......

EXHIBIT C: MODIFICATIONS TO THE CATHOLIC HEALTH CARE DIRECTIVE......

EXHIBIT D: PRESBYTERIAN ADVANCE DIRECTIVE/AFFIRMATION OF LIFE......

© Wendy S. Goffe 2011

1

AN ESTATE PLANNER’S ROADMAP TO THE VALLEY OF THE SHADOW OF DEATH: HEALTH CARE DIRECTIVES FROM RELIGIOUS PERSPECTIVES. FEAR NO EVIL[1]

PART I

Part I of this article will discuss the background and history of advance directives, as well as a selection of Western religious perspectives on these documents, with some forms. Part II will examine additional Western religions and some Eastern religious perspectives. Part III will examine spiritual rather than religious perspectives, as well as the many reasons advance directives are criticized as inadequate or unnecessary, and often disregarded.

We obsess in this country about how to eat and dress and drink, about finding a job and a mate. About having sex and children. About how to live. But we don’t talk about how to die. We act as if facing death weren’t one of life’s greatest, most absorbing thrills and challenges. Believe me, it is. This is not dull. But we have to be able to see doctors and machines, medical and insurance systems, family and friends and religions as informative — not governing — in order to be free.[2]

I.Introduction.

Research has shown that advance care planning—communicating one’s wishes about end-of-life decisions to loved ones, even if not in formal written legal documents—can help relieve the stress on families put in the position of having to make these decisions. Yet, only about one in three Americans has some form of health care directive or document naming a surrogate decision-maker in case of incompetency.[3] This may have to do with the complex legal terms used in the documents, as well as the lack of flexibility in the documents to accommodate patients’ values and preferences, as well as religious views. But theabsence of such a document can leave a surrogate in a quandary (sometimes having just learned that he or she was named as a decision-maker), and often leaves a negative emotional impact on the surrogate.[4]

In the past 30 years, the U.S. system of medical ethics has de-emphasized physician paternalism and increasingly emphasized patient autonomy.[5] A patient’s capacity for making independent decisions is questioned only if cognitive function or judgment appears to be impaired by either medical or psychiatric illness.[6]

Competent individuals have a state and federal constitutional right to refuse medical treatment stemming from the right to privacy and liberty.[7] States also have an interest in protecting life, and therefore, may refuse to terminate life-support when the person has become incompetent and has not previously made known his or her wishes regarding end-of-life treatment.[8] Professional standards as well as customs also provide the foundation for end-of-life policy.

This outline will examine how health care directives can be used to express an individual’s religious and spiritual beliefs concerning healthcare decision-making and end-of-life decisions. Some religious traditions advocate an uncompromising commitment to the preservation of human life under virtually all circumstances, regardless of prognosis, the wishes of the family, the quality of life it may result in, or cost. Other religious traditions emphasize the right to die with dignity, which would allow patients and families to participate in deciding when quality of life is so diminished that it justifies the withholding or termination of medical life-support.

One distinction among the various faithsdiscussed below is based on whether there is an intermediary between God and the believer (whether considered part of the believer’s relationship with God or simply someone who provides interpretations of God’s message). Those that believe in an intermediary generally also believe that the intermediary should be consulted or participate in end-of-life decisions.

Assisted suicide andaid in dying (often referred to as euthanasia) are concepts that have emerged from the death with dignity movement.[9] Among the faiths discussed, most favor palliative care that may, as a result, shorten a patient’s lifespan in the process of controlling pain, in lieu of active euthanasia. In fact, there is a “strong and near-unanimous religious opposition to suicide, assisted suicide, and voluntary euthanasia in America.”[10] Few faiths actively support suicide, assisted suicide or euthanasia, rather they take no position on this topic.

While this article will focus mainly on the health care directive, other documents, including Medical Powers of Attorney, Mental Health Directives, Ethical Wills, Physician Orders for Life Sustaining Treatment, Death With Dignity Directives and Tissue and Organ Donation documents, are also discussed below. Collectively these documents will be referred to as “advance directives.” The term “advance directive” appears in the federal Patient Self-Determination Act, enacted as §§4206 and 4751 of the Omnibus Budget Reconciliation Act of 1990, and has gained widespread usage among health-care professionals since then.[11]

Other factors that may be taken into account and expressed as part of a patient’s advance care planning, but not discussed below, include instructions to a decision maker to consider a patient’s financial goals and values and even to take steps to alleviate concerns related to finances;[12] beliefs regarding when life begins and ends;[13]spiritual beliefs (in addition to or instead of traditional religious beliefs) and the role of psychics and psychichealers;[14] and other issues that may trouble seriously ill or dying patients and their families.[15]

II.Health Care Directives - Generally.

A.Background.

The health care directive, also known as an advance directive or “living will,” is a statutory document authorizing the withdrawal or withholding of lifesustaining procedures for a terminal condition if death is imminent.[16] It may include provisions regarding the withdrawal or withholding of hydration and intravenous nutrition, as well as intubation and cardiopulmonary resuscitation in the event of a terminal or irreversible condition.[17] In the absence of a directive, the wishes of the principal may not be able to be carried out, or even known.

Health care directives have evolved over the past few decades. One of the earliest statements was written by Sissela Bok, a philosopher and Harvard professor, in 1976. It is remarkable that, in spite of all of the changes in thinking about end-of-life decision making since then, it is still a useful document. It provides as follows:

Personal Directions for My Care at the End of Life[18]

I, ______, want to participate in my own medical care as long as I am able. But I recognize that an accident or illness may someday make me unable to do so. Should this come to be the case, this document is intended to direct those who make choices on my behalf. I have prepared it while still legally competent and of sound mind. If these instructions create a conflict with the desires of my relatives, or with hospital policies or with the principles of those providing my care, I ask that my instructions prevail, unless they are contrary to existing law or would expose medical personnel or the hospital to a substantial risk of legal liability.

I wish to live a full and long life, but not at all costs. If my death is near and cannot be avoided, and if I have lost the ability to interact with others and have no reasonable chance of regaining this ability, or if my suffering is intense and irreversible, I do not want to have my life prolonged. I would then ask not to be subjected to surgery or resuscitation.

Nor would I then wish to have life support from mechanical ventilators, intensive care services, or other life prolonging procedures, including the administration of antibiotics and blood products. I would wish, rather, to have care that gives comfort and support, which facilitates my interaction with others to the extent that this is possible, and which brings peace.

In order to carry out these instructions and to interpret them, I authorize ______, to accept, plan and refuse treatment on my behalf in cooperation with attending physicians and health personnel. This person knows how I value the experience of living, and how I would weigh incompetence, suffering, and dying. Should it be impossible to reach this person, I authorize ______to make such choices for me. I have discussed my desires concerning terminal care with them, and I trust their judgment on my behalf.

In addition, I have discussed with them the following specific instructions regarding my care:

Date //Signed//Two Witnesses

The first statutory form was adopted by California in 1976. It was referred to as a “Directive to Physicians” as opposed to the more common “Living Will.” Since then a number of statutory models have been adopted. The primary and most common model evolved from the Uniform Health-Care Decisions Act, promulgated by the National Conference of Commissioners on Uniform State Laws in 1993, and recognized by the ABA on February 7, 1994.[19] The Uniform Act establishes baseline requirements for recognizing a broad range of written and oral statements as advance directives. States that have adopted the Uniform Act have almost always added more requirements, including the requirement that the document be witnessed. The Act contains a comprehensive sample form with various options, including the appointment of an agent, organ donation, and the ability to name a primary physician.

One of the earlier and most concise statements, leaving much open to interpretation by those who would be in a position to carry out the principal’s instructions with a lack of excessive “legalese,” is found in a prior version of Vermont’sstatutory form, which simply provided as follows:[20]

Vermont Living Will

To my family, my physician, my lawyer, my clergyman. To any medical facility in whose care I happen to be. To any individual who may become responsible for my health, welfare or affairs:

Death is as much a reality as birth, growth, maturity and old age-it is the one certainty of life. If the time comes when I can no longer take part in decisions of my own future, let this statement stand as an expression of my wishes, while I am still of sound mind.

If the situation should arise in which I am in a terminal state and there is no reasonable expectation of my recovery, I direct that I be allowed to die a natural death and that my life not be prolonged by extraordinary measures. I do, however, ask that medication be mercifully administered to me to alleviate suffering even though this may shorten my remaining life.

This statement is made after careful consideration and is in accordance with my strong convictions and beliefs. I want the wishes and directions here expressed carried out to the extent permitted by law. Insofar as they are not legally enforceable, I hope that those to whom this will is addressed will regard themselves as morally bound by these provisions.

In the absence of a statutory form that suits an individual, this form could be used as a starting point, to be adapted to an individual’s particular wishes. While health care directives are based on statutory forms, to the extent their instructions donot violate public policy, they also provide clients the opportunity to use more than simply formulaic language in expressing their wishes, especially with respect to religious beliefs and restrictions that might apply and arenot found in the statutory form documents. Not only has this been shown to aid the grieving and help them to understand the individual’s wishes,[21] it has also been shown in some cases to deter instances of undue influence and cause its readers to be more accepting of its content.[22]

Modifications for religious reasons are discussed in detail below. Ironically, while religion plays a strong role in end-of-life decisions, it was the secularization of Western society during the 19th century that allowed individuals to begin to perceive their own role in end-of-life decisions and to move away from church dogma on such matters.[23] Secularization allowed individuals to view death as a medical event rather than a religious one.

B.Definitions.

A number of technical definitions apply to advance directives (resulting in confusion by the general public and a lack of use of advance directives, as discussed below). ExhibitAsets forth a number of definitions, modified from the Uniform Health-Care Decisions Act, the National Hospice and Palliative Care Organization[24] and other sources.[25]

C.Five Wishes.

Five Wishes is a document that is accepted as a valid health care directive in a number of states. It is essentially an amalgamation of a very detailed health care directive, durable power of attorney for health care decisions, POLST and ethical will (both of which are described below), and allows the principal to describe what quality of life he or she would like at the end of life, including massage and other ways of making the patient more comfortable.[26] The wishes include: (i) The person the principal wants to make care decisions for him or her when the principal can’t make them for him or herself, (ii) the principal’s wishes for the kind of medical treatment he or she wants or does not want, (iii) the principal’s wishes for how comfortable the principal wants to be; (iv) the principal’s wishes for how the principal wants people to treat him or her; and (v) the principal’s wishes for what he or she wantshis or her loved ones to know.

III.Other Documents.

Individuals may use a number of other documents to describe their wishes regarding their health care and end-of-life decisions. These include:

A.Medical Powers of Attorney.

This document, sometimes called a Durable Power of Attorney for Health Care, is a statutory form in each state that allows patients to select a surrogate decision-maker to make certain medical decisions when patients are temporarily or permanently unable to communicate or make such decisions.

As in many states, in Washington, in the absence of a medical power of attorney, RCW 7.70.065 provides that the following individuals may give informed consent on behalf of an individual unable to consent, which includes: (i) the patient’s spouse or registered domestic partner; (ii) children of the patient who are at least eighteen years of age; (iii) parents of the patient; and (iv) adult brothers and sisters of the patient. It is important to note that state law does not give any authority to an unregistered domestic partner.[27]

B.Mental Health Directives.

In some states, including Washington, a medical power of attorney may also be used to allow a mentally ill person to express his or her preferences regarding mental health treatment from psychiatrists and other mental health care professionals.[28] The mental health advance directive allows individuals to bind themselves to psychiatric treatment in advance of needing it for the purpose of overcoming illness-induced refusals of treatment. Between 1991 and 2006, 27 states enacted statutes authorizing psychiatric advance directives in some form.[29] Because they do not deal with end-of-life decisions, they are not covered in greater detail here.

C.Ethical Wills.

In his book Healthy Aging: A Lifelong Guide to Your Physical and Spiritual Well-Being,[30] Dr. Andrew Weil advised that preparing an ethical will is a “gift of spiritual health” that one can leave for his or her family. An ethical will can communicate to one’s descendants a person’s cultural history, and ethical and spiritual values.[31] The goal of writing an ethical will is to link a person to both their family and cultural history, clarify their ethical and spiritual values, and communicate a legacy to future generations. It can also be used as a tool for spiritual healing by the writer and the readers.

Barack Obama’s letter to his daughters is a form of ethical will, in which he expresses his love, spiritual values, blessings, hopes and dreams for his daughters, passes on life-lessons and wisdom gained from his experiences, requests forgiveness for regretted actions, and sets forth his rationale for the paths he has taken.[32]

D.Physician Orders for Life Sustaining Treatment.

Many states, including Washington,[33]California[34],West Virginia[35] and New York[36] have variations of Physician Orders for Life-Sustaining Treatment (“POLST”) forms, a document developed by health care professionals as a standardized method to summarize a patient’s wishes regarding life-sustaining treatment. This document is meant to supplement a health care directive. The form varies from state to state, but it is generally signed by both the patient and the doctor and becomes part of the patient’s medical record. It is printed on a bright colored card stock so as to be visible in a patient’s file (e.g., bright green in Washington, hot pink in West Virginia).