THE BATTLE TO DIE
WITH DIGNITY Surprise man's death puts spotlight
on bureaucractic mess, confusing law
The above headline appeared in The Arizona Republic
on March 24, 2002. The article under the headline described
a terminally ill man whose wife and son disconnected
his life support at his insistence. After the man's
death, the Surprise, Arizona police and the Maricopa
County Attorney conducted a lengthy inquiry. The County
Attorney ultimately declined to prosecute.
Granted, what happened to the family described in
the article shouldn't happen to anyone. Had they been
equipped with a living will and a health care power
of attorney prepared and executed according to the specific
directions of Arizona law, however, they probably could
have avoided the situation.
Despite the above headline, there need not be a "bureaucratic
mess," nor is the law confusing when it comes to
making and implementing a living will and a health care
power of attorney. The Arizona statutes that specify
how these documents are to be prepared and executed
make it very clear what they can include, how they are
to be signed, and how to have them correctly witnessed
and notarized.
The statutes are also quite clear that health care
providers and others who make good faith decisions as
directed or authorized under a valid living will or
health care power of attorney are immune from being
held financially or criminally responsible for the consequences
of those decisions. To put it simply, it is not a crime
or grounds for a lawsuit to carry out a living will
that says to withhold or withdraw life support. The
one situation that is not clearly covered by the current
statutes is when a person acting under a health care
power of attorney who is not a health care provider
actually disconnects the life support system of the
person who has directed or authorized such action. That
area of uncertainty is probably what caused the situation
described in the March 24 Arizona Republic article.
But had the man described in the article gone to the
hospital with a living will and a health care power
of attorney executed as specified by law, he should
have had no difficulty in getting his instructions carried
out. Another choice that should have been available
to him would be to return to the doctor who placed him
on the life support systems and ask the doctor to carry
out his instructions as specified in his living will.
If that doctor was unwilling for reasons of conscience
to carry out the patient's instructions, the law provides
for the doctor to so inform the patient and refer the
patient to a doctor who is willing to carry out the
patient's instructions.
The law in matters of "right to die" is
still not absolutely clear in all circumstances. Much
progress has been made, however, in clarifying the methods
by which a patient's desire to refuse medical treatment
can be made legally enforceable. A living will and a
health care power of attorney that are drafted, signed
and witnessed according to the specific guidelines of
Arizona law are effective in virtually all circumstances.
Anyone who wants to have the ability to refuse medical
treatment can and should make those desires known, and
make them enforceable with a living will and a health
care power of attorney.
| This communication is designed
to bring legal developments of interest to the attention
of our clients and others. It should not be relied
upon as a substitute for specific legal advice in
a particular matter. For further information on
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