A recent article in the Wall Street Journal discusses the enforceability of “living wills”, legally known as advanced directives.
In 2011 Lynne Chesney was diagnosed with a progressive degenerative disease and in 2013 she signed a living will stating her desire that her life not be extended by extraordinary artificial means. In 2018, Chesney lost her ability to speak and her conditioned worsened. Her daughter was appointed her special emergency guardian when she was hospitalized with pneumonia, and authorized insertion of a percutaneous endoscopic gastronomy (“PEG”) tube to hydrate and feed Chesney, despite the terms of her living will. Her living will stated that if she (a) had a terminal condition that is incurable and irreversible and likely to result in death in 6 months, (b) was persistently unconscious where “thought and awareness are absent” (persistent vegetative state), or (c) had an end stage condition (injury, disease or illness resulting in severe and permanent deterioration indicated by incompetency and complete physical dependency for which medical treatment would be ineffective), she did not want her “life extended by life sustaining treatment including artificially administered nutrition and hydration.”
Chesney’s sister objected to daughter’s appointment, and then the court appointed a “guardian ad litem” (“GAL”), which was a court appointed attorney acting only for Chesney. The GAL reported to the court that Chesney by hand gestures and facial expressions confirmed her desire to terminate life sustaining care and remove the tube. The trial court noted that the revocation of the 2013 living will was not noted in Chesney’s medical records. The Oklahoma appeal court ruled that the standard of evidence to revoke a living will is “preponderance”. However, on further appeal the Oklahoma Supreme Court ruled that the standard to revoke under the Oklahoma statute is clear and convincing evidence. Dissenting Chief Justice Kane noted that the Oklahoma statute provided that “an advanced directive may be revoked in whole or in part at any time and in any manner… without regard to the declarant’s mental or physical condition.” He further noted that while the standard was met in Chesney’s case (the trial court noted both preponderance and clear and convincing standards were met), the result in revocation of a living will is not always removal of care. Further, because the statute does not require competency to revoke a living will, “it only makes sense that a lower burden of proof is required.” Moreover, as established by the U.S. Supreme Court in the 1978 Cruzan case, “autonomy over one’s medical care includes the right to change one’s mind about life-sustaining treatment.” In that case, the U.S. Supreme Court held that clear and convincing evidence was required to TERMINATE life sustaining treatment, not to prolong life. Justice Kane pondered that the more lenient standard was intended for those cases where one signs a living will and then, actually faced with death, changes his mind and wishes to prolong his life. (Justice Kane also chastised the court for borrowing different standards from some unrelated statutes, to justify their conclusion.)
The Court did not discuss the specific dynamics in Chesney’s case. However, it appears she did not have a spouse to make decisions. Further, as noted, her medical records did not note her revocation of her living will, which is one of the 13 ways to find revocation under the Oklahoma statute. Under the Colorado Advanced Directive statute, C.R.S. 15-18-101 et seq., a living will may be revoked by the declarant orally, in writing, or by burning, tearing, canceling, obliterating or destroying the directive (109). In Colorado, any family member may challenge a living will, but the process requires prompt notice and determination. When application is made, the court issues a temporary restraining order pending final determination, and a GAL is appointed for the patient/declarant. The court may require the evidence it “deems necessary”. Any living will compliant with Colorado law, or the laws of the state where it was executed, is valid. If the family member filed the objection in bad faith, the court may assess attorney fees against that person. However, just like the Oklahoma statute, the Colorado statute does not expressly state the standard of evidence necessary to revoke a living will. Under Colorado law, a living will is not “triggered” unless two qualified physicians confirm, in writing, that a person is terminally ill and cannot communicate or is in a persistent vegetative state. Colorado’s statute is perhaps narrower than the Oklahoma statute, but perhaps covers a wider range of circumstances in actual practice.
How do we ensure our family allows our use of a living will? First, in cases where one is losing capacity or declining because of a condition, discuss using a living will with your doctor, and ensure your decision to use, or not to use, a living will is clearly documented in medical records. Second, make sure that you execute the living will to ensure maximum chance of enforcement. Executing before both a notary and before two witnesses, though only one method is required under Colorado law, probably will help. Third, clearly communicate your decision to have a living will to your family. This could be oral, but in clear cases I suggest a separate writing personally to your family, expressing your desire not to live use extraordinary means to keep you alive. End of life decisions are among the most personal we make, but the importance of such decisions is often not clear until we are faced with very specific facts.
MWR
