Estate Planning: Assisted Suicide Closer to Legalization

Tamara Polley
By Tamara Polley December 15, 2015 21:35

white pills blue backgroundTerminally ill Californians may soon have the legal right to end their own lives.

In October, Gov. Jerry Brown signed the End of Life Option Act, which authorizes the use of drugs to hasten a suffering patient’s death if certain conditions are met. Under its terms, death resulting from drugs taken under the law would not be termed “suicide.” Thus no insurance company could deny policy benefits to the heirs of these patients, as long as they follow the law’s procedural requirements.

When the bill will become law is unclear: By statute, it would become legal 90 days after an ongoing special legislative session on health care adjourns. The session could end as early as January or as late as November.

Also, a petition drive aimed at overturning the law has been launched, and – if sufficient signatures are gathered – the bill will be on hold pending a statewide referendum next November.

Oregon, Washington, Montana, Vermont and New Mexico already allow assisted suicide in the U.S. In Europe, Switzerland, Belgium, Luxembourg and the Netherlands permit it.

Modeled after Oregon’s landmark 1997 law, California’s pending law is tightly controlled and includes numerous conditions and qualifications that must be met. Physicians are not required to provide aid-in-dying services under the law, so a person wanting to take advantage of the law must find a doctor willing to provide these services. A look at the requirements:

The patient: To request an “aid-in-dying drug” – typically a lethal dose of barbiturates – the patient must be an adult resident of California, have the capacity to make medical decisions, have a terminal diagnosis expected to result in death within six months, and have the physical and mental ability to self-administer the drug.

The law specifically provides that a patient must “solely and directly” request the aid-in-dying drug. Such a request cannot be made on behalf of the patient by an agent under a power of attorney or an advance health care directive, or by a conservator.

The request: The patient must make two oral requests for the aid-in-dying drugs directly to his or her doctor a minimum of 15 days apart. He or she must also submit a written request, signed by two witnesses, to the same doctor. The witnesses must attest that they know the patient or have seen proof of identity, that the patient signed the request voluntarily and in their presence, and is of sound mind and not under duress, fraud or undue influence.

Only one of the witnesses can be related to the patient or entitled to a portion of his or her estate upon death, or be employed at the hospital or care home where the patient is receiving care. Doctors making the terminal diagnosis or consulting in regard to the request or prescribing the drug cannot be witnesses.

The doctor: Before prescribing an aid-in-dying drug, a doctor must:

  1. Determine that the patient has a terminal illness and also has the capacity to make medical decisions.
  2. Refer the patient for a psychiatric assessment if there are indications of mental illness.
  3. Determine that the request for the drug was voluntary and that the patient followed the proper procedures.
  4. Confirm that the patient is making an “informed decision” and has considered feasible alternatives and additional treatment options.
  5. Refer the patient to a consulting doctor to confirm the diagnosis, the patient’s capacity to make medical decisions and that proper procedures were followed.
  6. Meet alone with the patient to confirm that the request was not made as a result of coercion or undue influence.
  7. Advise the patient to have another person present when taking the drug, not to take it in public, to notify his or her family of the request for the drug, to seek hospice care and to keep the drug in a safe, secure location until taking it.
  8. Inform the patient that he or she can withdraw or rescind the request for life-ending drugs at any time in any manner, and offer the patient the opportunity to do so immediately.
  9. Fill out all required documents, complete a checklist and a compliance form, and send all to the California Department of Public Health.
  10. Give the patient a final “attestation form” to fill out and sign 24 hours before taking the aid-in-dying drug.

Once all of these procedures have been followed, the doctor can either give the drug to the patient directly or deliver a prescription to a pharmacist to dispense to the patient.

Taking the drug: By law the patient must take the drug under his or her own power. Although others may help prepare the drug and be there when the patient takes it, it is a crime to actually administer the drug.

The drug must not be taken in a public place. Under the law’s terms, a claim can be made against the patient’s estate by “any governmental agency that incurs costs” as a result of public ingestion.

Saying no: Doctors are not required to provide aid-in-dying services and cannot be sanctioned, disciplined or held liable if they refuse to do so or if they fail to refer a patient to another doctor for such aid.

Any health care provider (doctor’s office, hospital, clinic) can ban its employees from providing such services, but there are defined procedures they must follow for the ban to be binding.

Insurance: Life, health or annuity policies, or health care benefit plans, cannot be “conditioned upon or affected by” a person making or rescinding a request for an aid-in-dying drug.

Also, taking an aid-in-dying drug is not legally considered to be suicide if the proper procedures are followed, and the resulting death cannot be treated as anything other than a natural death from the underlying terminal disease.

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

Copyright © 2015 Friends and Neighbors Magazine

Tamara Polley
By Tamara Polley December 15, 2015 21:35
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