Advance directives have often been given the status of a poor relation in the field of estate planning. From the attorney’s perspective, advance directives were always a necessary part of the estate planning conversation but were rarely the focus. Clients seldom understood the value of such documents unless they had personally been through a health care crisis.
All that changed with the sensational news stories of families fighting over end-of-life decisions. Now, advance directives, and particularly living wills, are in the consciousness of everyday people.
As more and more people seek out advance directives as part of their estate plan, practitioners need to expand their ability to service this clientele. When it comes to end-of-life decisions, there is no “one size fits all,” and attorneys must be cognizant of the ways in which living wills can be tailored to clients’ specific needs and beliefs.
Growing out of the common law rule that a person has the right to decline medical treatment and even life-sustaining treatment, living wills have long been recognized under common law in New York state. As living wills are currently not governed by statute in New York, they can vary widely to reflect the specific wishes of the individual. This article will focus on drafting techniques, specific issues to discuss with clients, and how to draft to accommodate special circumstances such as the giving of last rites, Orthodox Jewish specifications, and provisions for survival of a pregnant woman versus a fetus.
By way of background, in order to withdraw life-sustaining treatment from an incapacitated person, New York state requires clear and convincing evidence that the individual would have directed the termination of artificial life support if he or she were competent and able to communicate. In Matter of Westchester County Medical Center on Behalf of O’Connor, the court, while recognizing the variety of possible scenarios and the resultant inability to set rigid guidelines, set forth basic principles to be used in determining “whether the proof ‘clearly and convincingly’ evinces an intention by the patient to reject life prolonged artificially by medical means.”1 The court further stated that
[t]he ideal situation is one in which the patient’s wishes were expressed in some form of writing, perhaps a “living will,” while he or she was still competent. The existence of a writing suggests the author’s seriousness of purpose and ensures that the court is not being asked to make a life-or-death decision based upon casual remarks.2
Some 10 years later, in Matter of May v. The Wartburg Health Care Center, the Westchester County Supreme Court ratified a living will by finding that it established “clear and convincing evidence” that the patient would not wish to receive any form of life-sustaining medical treatment in her present medical condition.3
As a common law construct with no governing statute, there are no formal execution requirements for a living will. However, as a practical matter, a living will is typically executed concurrently with a health care proxy and it is therefore good practice and procedure to follow the same execution requirements as set forth in the Public Health Law governing the execution of a health care proxy, that is, signed and dated in the presence of two adult witnesses who also sign the document.4
Just as there are no standard execution requirements, there is no required language that must be included within the living will itself. Typically, a living will includes some form of the following language options indicating that a client either does or does not wish to receive life sustaining treatment when suffering from a terminal condition:
I declare that after thoughtful consideration, I have decided that I wish to forgo all life-sustaining treatment if I shall in the future sustain substantial and irreversible loss of mental capacity and I am unable to eat or drink without assistance and tube(s) or other artificial means are required to feed me and it is highly unlikely that I will ever be able to eat and drink without artificial feeding or I have an incurable or irreversible condition that is likely to cause my death within a relatively short time.
Or the living will may contain the alternative directive, as follows:
I declare that after thoughtful consideration, I have decided that I wish to have all life-sustaining treatment administered to me even if I shall in the future sustain substantial and irreversible loss of mental capacity and even if I shall have an incurable or irreversible condition that is likely to cause my death within a relatively short time.
It is impossible to provide for and accommodate every possible scenario or permutation in a living will and therefore any general instructions given within the document will inevitably need to be interpreted by those charged with making treatment decisions. On the other hand, because the living will has no formal drafting requirements, it is possible to include instructions regarding events the client has specifically considered.
For example, the attorney may draft a living will to include instructions that end-of-life care adhere to a particular religious teaching, to provide that last rites be administered before treatment is terminated, to supply instructions in the event of pregnancy at the time such treatment decisions are made, to dictate a specific length of time the incapacitated individual wishes to receive a particular treatment before having it terminated and even to request that an individual receive visits from a pet in the event he or she is suffering from a terminal illness and unable to make that request for themselves.
Practitioners are called upon to have difficult conversations with clients on these subjects. It can be very challenging to unearth this sensitive information, particularly if the client has not been prompted to think through such decisions before meeting with the attorney. To complicate matters more, attorneys are often uncomfortable inquiring as to religious beliefs that may affect end-of-life decisions. However, to shy away from such subjects is to do a disservice to the client.
Consider, for example, a Catholic client. As part of the living will conversation, attorneys should discuss whether a Catholic client wishes to specify in their living will the ministration of last rites, which may include the Anointing of the Sick, Penance and the Eucharist. Such last rites vary by differing Catholic traditions, but each can be accommodated in a well-crafted living will. Such a living will may include the following language:
I direct that my family, all physicians, hospitals and other health care providers and any court or judge honor my decision to have a Catholic priest present to administer the sacrament of anointing of the sick. If it is determined that I have an incurable or irreversible condition that is likely to cause my death within a relatively short time, I direct that a Catholic priest be present to administer my last rites.
Similarly, practitioners are wise to inquire of and educate Jewish clients as to the option to specify that Jewish Law govern health care decisions and thereby create a Halachic living will. In such a case, not only is the client naming an agent and alternate agent to communicate health care wishes under the living will but also specifying a rabbi and an alternate rabbi or Jewish organization to provide consultation and guidance as to the end-of-life requirements of Jewish law and custom. The following language can be added to the living will to instruct health care providers that the client wishes to observe Jewish Law at the end of their life:
Upon the occurrence of a triggering event,5 all life-sustaining treatment shall be withheld or withdrawn from me in a manner consistent with Jewish Law and tradition and in consultation with a rabbi competent in Jewish Law and the field of Jewish medical ethics to be chosen by my health care agent authorized to communicate as named herein. It is my wish that Jewish law and custom should dictate such matters as the administration of cardio-pulmonary resuscitation, the initiation or discontinuance of life-support, including tube-delivered nutrition and hydration, and the method and timing of the determination of death.
In addition, a Halachic living will may specify a client’s desire that the handling and disposition of their body be made pursuant to Jewish Law and custom, including any exceptions to the general prohibition against the performance of an autopsy or organ donation.
Accounting for Pregnancy
Female clients of child-bearing age can be faced with the possibility of a pregnancy concurrent with incapacity and life threatening injury or illness. Again, an attorney would be remiss not to discuss relevant treatment decisions in this scenario, no matter how difficult the subject. When discussing this issue, practitioners must evince such decisions as whether the client wishes to save her own life over her unborn child’s life, keep herself alive until a fetus is viable outside of the womb or save the unborn fetus at all costs, including the loss of her life. Possible language to include in the living will can be as follows:
In the event I am not in the stages of a terminal condition and I am pregnant, and life sustaining measures can possibly allow a recovery, but such measures might result in the death of my unborn baby, I wish to have my life preserved over that of my unborn baby.
A living will can be drafted to allow for the mother’s life to be preserved until such time as a viable fetus can be removed by including such language as follows:
If, upon the occurrence of a triggering event, I am pregnant, and life sustaining measures can possibly preserve the life of my baby, I would like to receive life sustaining treatment until the baby can be removed. Once the baby is removed, I do not want to receive life sustaining treatment if a triggering event has occurred.
Again, as a legal document governed by common law, it is not only possible but preferable to customize end-of-life treatment decisions in a way that provides comfort and peace of mind for the client. For example, many clients do not wish to receive life-sustaining measures indefinitely but would like to receive artificial feeding and nutrition for some length of time. In such a case, the practitioner should consider adding the following language:
If I shall in the future sustain substantial and irreversible loss of mental capacity and I am unable to eat or drink without assistance, and tube(s) or other artificial means are required to feed me, and it is highly unlikely that I will ever be able to eat and drink without artificial feeding, then I wish all life sustaining treatment be administered to me for a period not to exceed two (2) months, after which, if I still am unable to eat or drink without assistance, and tubes or other artificial means still are required to feed me, and it remains highly unlikely that I will ever be able to eat and drink without artificial feeding, then I wish to be removed from all life sustaining treatment.
Practitioners in the fields of elder law and estate planning know that nothing is more important than honoring a person’s last wishes. Appreciating that one size does not fit all in end-of-life decisions is critical to good lawyering. Accommodating all the varieties and permutations of end-of-life decision-making is possible with awareness of the issues and options, open and honest conversation, and sensitive drafting. As the court stated in Matter of Westchester County Medical Center on Behalf of O’Connor, “[n]othing less than unequivocal proof will suffice when the decision to terminate life support is at issue.”6 As a writing that provides clear and convincing evidence of a person’s wishes, it is critical that the attorney-draftsperson bring forth and examine clients’ specific wishes and beliefs and tailor living wills to accommodate and reflect such directives.
Jennifer B. Cona is the managing partner of the elder law and estate planning firm of Genser Dubow Genser & Cona. Lynn Kay is an associate at the firm.
1. Matter of Westchester County Medical Center on Behalf of O’Connor, 72 N.Y.2d 517, 530 (1988).
2. Id. at 531.
3. Matter of May v. The Wartburg Health Care Center, 5/8/97 NYLJ, p. 34, col. 4 (Sup. Ct. Westchester County).
4. New York Public Health Law §2981(2)(a).
5. A “triggering event” is generally defined as the loss of mental capacity coupled with either 1) the need for artificial feeding or 2) the diagnosis of an incurable or irreversible condition likely to cause death within a relatively short time.
6. Matter of Westchester County Medical Center on Behalf of O’Connor, 72 N.Y.2d at 529.