Advances in medical technology have served to prolong the physical life in patients lacking significant brain function, and also have underscored the importance of advance directives in the
modern era. Patients enduring life-sustaining treatments involving feeding
tubes and artificial nutrition often present ethical and legal dilemmas, which
arise from ignorance about the patient’s preferences for treatment.
The federal Patient Self-Determination Act requires all hospitals to ask patients
when admitted if they have a living will. Statutes exist that authorize and recognize
that advance directives are one solution for individuals to bypass the
long and arduous court process surrounding termination of life. Depending
on the state in which the client lives, the practitioner should look to the appropriate
state statute to determine the requirements for the contents and form
of an advance directive.
Pennsylvania’s General Assembly acknowledges that life-sustaining procedures
are uncomfortable and may cause a loss of dignity to a person, as
well as burdensome prolongation of life beyond natural limits. 20 Pa. Cons. Stat. §
5423(c)(3)–(4). Pennsylvania’s Health Care Agents and Representatives Act (the Act)
“respect[s] advance health care directives, as well as the decisions of close relatives
and friends, where the incompetent person suffers from an end-stage condition
or permanent unconsciousness, and enables health care providers to comply
with such decisions.” In re D.L.H., 2 A.3d 505, 514 (Pa. 2010) (citations omitted).
In passing the Act, the General Assembly explicitly found that “individuals have
a qualified right to make decisions relating to their own care.” 20 Pa. Cons. Stat.
§ 5423(c)(1). This includes a qualified health care agent’s right to refuse life-preserving
medical treatment on behalf of a principal. Note, however, someone who
is already not competent cannot appoint a health care agent. In re D.L.H., 2 A.3d at
509. In Pennsylvania, if a person has no health care agent, the law mandates that
care must be provided. This seems ethical and right; however, at some point, if a person
is in a permanently vegetative state, he or she will likely be subjected to the court
process. Notably, court-appointed guardians do not automatically have authority
to make end-of-life decisions unless stated in the final decree of adjudication
of incapacity.
As a rule of thumb, estate planners should always counsel clients to plan about the
possibility of incapacity. This includes physical decline (vision, hearing, memory),
as well as mental decline. With mental decline comes the need for asset
protection (the financial power of attorney, trusts, LLCs) and protection for the
person (the advance health care directive focusing on end-of-life care, nomination
of a guardian and caregivers). See, generally, Lawrence Frolik & Bernard Krooks,
Elder Law 1–8 (Heckerling Materials Jan. 14, 2013).
The plethora of cases surrounding the rights to termination of life procedures
reminds practitioners of the importance of counseling a client about (1) the need
to plan and prepare for life support, (2) the need for informed consent to end
treatment, (3) the financial costs of medical treatment, and (4) the emotional
burdens placed on friends and family faced with the bio-ethical dilemma.
Principals must appoint a health care agent in an advance directive before
becoming incompetent to make their own decisions. An advance directive survives
a declaration of a person as incapacitated. A living will is another means for a principal
to adopt an advance directive. A living will is “an instrument authorizing and
directing the withholding or withdrawing of life supports under certain circumstances.”
Gregory G. Sarno, J.D., Living Wills, 49 A.L.R.4th 812 (ed. 1986).
Some living wills will allow a competent principal to check off which medical treatments
she is willing to accept. It is prudent for the legal practitioner to ask whether the
client would like to check these boxes off, or give the health care agent the authority
to decide which treatment to reject. The counselor should aim to discover at what
point the principal would prefer termination of life-sustaining treatment. Many
clients simply do not want to imagine death. They are unaware of the intense
legal mechanisms designed to promote their rights but also could prolong a horrible
state suspended between life and death. Notwithstanding, it is up to each
individual to make the important choice about what life-sustaining treatment he or she would tolerate if unable to communicate his or her informed consent.
All individuals have the right to make the important choice about what life-sustaining
treatment they would tolerate if unable to communicate their informed
consent. I am thankful that my aunt made this important personal decision while of
sound mind and that my family did not need to go through an agonizing, expensive,
emotionally painful judicial process to ensure her wishes were honored.
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