Estate Planning: California’s Take on the Right to Die

Tamara Polley
By Tamara Polley December 15, 2014 16:31

Brittany Maynard’s assisted suicide has again placed a spotlight on the right to die. Stricken with terminal brain cancer, the 29-year-old Californian moved to Oregon to take advantage of that state’s law allowing physician-assisted suicide. That law requires a short waiting period and two physicians to verify competence.

With a doctor’s help, Maynard took her own life on Nov. 1, 2014.

Oregon voters passed the Death with Dignity Act in 1997. Washington, Montana and Vermont also have assisted-suicide laws, but attempts to pass similar legislation in California have failed. So what rights do we in the Golden State have with respect to dying?

California law provides that a competent, informed adult has the right to refuse medical treatment of any form, regardless of consequences. To be deemed competent and informed, the patient must “respond knowingly and intelligently” to questions about medical treatment, rationally participate in treatment decisions and understand four things:

  • The nature and seriousness of his or her illness
  • The medical treatment recommended
  • The benefits and risks of that treatment, and the consequences of declining treatment
  • The risks and benefits of reasonable alternatives

California courts have held that refusing treatment includes the right to disconnect a ventilator and remove a feeding tube. In one case, the court found that the patient’s “decision to allow nature to take its course is not equivalent to an election to commit suicide.”

The suicide issue is the key distinction between California and Oregon law. In California, it is not a crime to attempt suicide, but it is a crime to help someone else do it. Therefore, a doctor cannot prescribe lethal drugs to help a patient take his or her own life, nor can a friend or family member assist in a suicide.

What happens if a patient is not competent enough – due to illness or unconsciousness – to refuse medical treatment?

If that patient has completed an advance medical directive appointing an agent to make his or her health-care decisions and specifying which medical treatment shall be given or withheld, that document will govern.

If the patient has not filed such a document, the court gets involved. An appointed conservator may have the authority to authorize removal of life support, including nutrition and hydration, when a patient is in a vegetative state or “minimally conscious” and unable to understand or speak for himself or herself. Court rulings require that termination must also be in the patient’s best interest.

In my opinion, however, it would be very unwise for a conservator to terminate treatment without a specific court order – particularly if there is disagreement among family members and litigation is likely.

The well-publicized cases of Terri Schiavo and Robert Wendland, in which family members were involved in bitter, emotional legal battles over whether to end life support, illustrate the importance of exercising the right to make our own health-care choices.

We all should prepare for the possibility that we may someday be unable to speak for ourselves in a life-threatening situation. Doing so is no less important than buying auto or home-owner’s insurance and is both cheaper and easier than either.

Medical directive forms are available online (coalitionccc.org) or at office supply stores. These forms merely need to be filled out and signed in front of either two witnesses or a notary.

Tamara Polley is an attorney with Gianelli & Polley, a Sonora law firm, gianellilaw.com.

Copyright © 2015 Friends and Neighbors Magazine
Tamara Polley
By Tamara Polley December 15, 2014 16:31
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