A couple of years ago I told you about a
man in Surprise, Arizona, whose lack of a
living will almost resulted in the criminal
prosecution of his wife and son for disconnecting
his life support apparatus, even though they
did it at his request. Now there is an effort
in the Arizona Legislature to make such health
care documents more accessible by posting
them on a web site. The site would include
postings of living wills, medical powers of
attorney, mental health powers of attorney,
and prehospital medical care directives, and
would be accessible to hospitals and other
health care providers. The theory is that
the site would make it easy for health care
providers to locate and refer to such documents.
Currently if the patient does not give such
documents to the health care provider, the
health care provider doesn't know about the
documents and can't act on the directions
contained in the documents.
I wonder if this proposal will really accomplish
much. The idea is not that you would be able
to create the documents on line, but only
that once they have been executed, you can
then post them on line. In other words, you
would still have to follow the legal steps
for validly executing a living will, power
of attorney, or prehospital medical care directive.
The good news is that, despite the impression
given by the news reports that appear whenever
a difficult situation arises, 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 that the man in
Surprise, Arizona found himself in.
But had that individual 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
have been 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.
It seems to me, however, that making sure
the documents are available to health care
providers after they are executed is much
less of a problem than getting the documents
prepared and executed in the first place.
If our lawmakers want to take a step that
could really address the problem, perhaps
they could consider adopting a system that
would allow electronic creation and execution,
as well as storage and retrieval, of living
wills.
REAL ESTATE LAW UPDATE-
AN UPDATE ON "L.C." THE ATTACK CAT
I thought you would like to know that a jury
has ruled on the case I told you about in
January. The jury ruled in favor of the City
of Escondido and against Mr. Espinosa, who
claimed that "L.C." the library
cat violated his rights by attacking his service
dog (the theory being, apparently, that the
attack effectively denied him access to the
public library). Choice quote from the North
County Times article reporting on the verdict:
"After that first juror said the word
‘frivolous,' and so did the next five,
I thought the whole [jury] panel should have
been out," said Espinosa. "I truly
think the well got poisoned right there."
