Trust and Estate Law
The Lawyer's Role in End-of-Life Planning—Moving Beyond Advance Medical Directives
Grant Marylander, Jean Abbott, J.
Trust and Estate Law articles are sponsored by the CBA Trust and Estate Section. Topics include trust and estate planning and administration, probate litigation, guardianships and conservatorships, and tax planning.
David W. Kirch, Aurora, of David W. Kirch, P.C.—(303) 671-7726, firstname.lastname@example.org; Constance D. Smith, Denver, of Fairfield and Woods P.C.—(303) 894-4474, email@example.com
About the Authors
Grant Marylander is a lawyer with The Marylander Firm LLC specializing in the areas of consumer protection, direct marketing, and corporate compliance and ethics. He volunteers as a clinical ethics consultant for Boulder Community Health and serves on its Ethics Committee. He is an advisory member of The Conversation Project in Boulder County and a seminarian at the Iliff School of Theology—(303) 623-3600, firstname.lastname@example.org. Jean Abbott, MD, MH, is a board-certified emergency medicine physician who has been a faculty member in emergency medicine at the University of Colorado since 1985. She teaches ethics and professionalism in the Health Sciences Center, is a member of the University of Colorado Hospital Ethics Committee, and manages the Ethics Consult service. She teaches and writes about ethics and professionalism issues through the Center for Bioethics and Humanities and is a co-founder of The Conversation Project in Boulder County.
Advance medical directives are enhanced with an inventory of a client's values regarding end of life decisions using a value-based supplement. The lawyer's role in advance care planning extends to introducing these supplements so the client's end-of-life values are respected.
Man plans and God laughs. —Yiddish proverb
Beginning in the mid-1970s, healthcare providers, patients, families, and the public have vigorously debated the issue of patient autonomy and the right to withhold unwanted medical treatment. This debate was well summarized by the New Jersey Supreme Court in the tragic case of Karen Ann Quinlan, a young woman who suffered from a chronic persistent vegetative state.
The litigation has to do, in final analysis, with her life—its continuance or cessation—and the responsibilities, rights and duties, with regard to any fateful decision concerning it, of her family, her guardian, her doctors, the hospital, the State through its law enforcement authorities, and finally the courts of justice.1
In 1990, the U.S. Supreme Court recognized competent adults have a "constitutionally protected liberty interest in refusing unwanted medical treatment. . . ."2 Since then, a number of states, including Colorado, have enacted legislation affirming a patient's right to refuse medical treatment and recognizing the legal effect of advance medical directives (for purposes of this article, we use t he term "advance medical directives" as that term is defined in CRS § 15-115-505(2)).3
Unfortunately, as we have become medically adept at prolonging death, advance medical directives often prove inadequate in providing meaningful direction to an agent or healthcare provider confronted with end-of-life decisions. Lawyers who assist clients in estate and advance care planning should consider not only appropriate advance medical directives but also the "upstream" value-based initiatives that help guide their clients in planning for end-of-life care and treatment. Clients who engage in an inventory of their values and wishes for end-of-life care as part of their planning process are more likely to provide meaningful direction to their lawyers on what values are most important to them.
Several organizations have created value-based supplements that move beyond rigid rules to capture the patient's wishes regarding the end of life. This article discusses advance medical directives, as well as several of the more useful upstream value-based supplements that can help clients articulate their values and better allow for respect for their wishes.
Advance Medical Directives— The Legal Landscape
In Colorado, advance medical directives include: (1) the medical durable power of attorney executed pursuant to CRS § 15-14-506; (2) a declaration executed pursuant to the Colorado Medical Treatment Decision Act (sometimes referred to as a living will), CRS § 15-18-104; and (3) a cardiopulmonary resuscitation (CPR) directive executed pursuant to CRS §§ 15-18.6-101 et seq.4
The medical durable power of attorney delegates authority to an agent to act on behalf of the patient in consenting to or refusing medical treatment.5 Notably:
[t]he agent shall act in accordance with the terms, directives, conditions, or limitations stated in the medical durable power of attorney, and in conformance with the principal's wishes that are known to the agent.6
A declaration regarding medical treatment allows a competent adult to direct
that life-sustaining procedures be withheld or withdrawn if, at some future time, he is in a terminal condition and either unconscious or otherwise incompetent to decide whether any medical procedure or intervention should be accepted or rejected.7
The declaration becomes effective forty-eight hours after two doctors certify the patient is in a terminal condition, to allow a spouse, adult child, parent, or attorney-in-fact to challenge the declaration.8
A CPR directive allows a patient or the patient's healthcare proxy to execute a document refusing resuscitation—that is, "measures to restore cardiac function or to support breathing in the event of cardiac or respiratory arrest or malfunction."9 A CPR directive is distinct from a Do Not Attempt Resuscitation order (commonly referred to as a DNR or DNAR order), which is used exclusively during a patient's admission at a healthcare facility and entered by the treating physician after receiving the patient's or, where applicable, the healthcare proxy's, informed consent.
In 2010, the Colorado Legislature created a new form of advance medical directive designed for the "frail elderly, chronically or terminally ill, and nursing home resident population," known as "Medical Orders for Scope of Treatment" or "MOST"10 The MOST form includes instructions concerning: (1) the administration of CPR; (2) other medical interventions, including but not limited to consent to comfort measures only, transfer to a hospital, limited intervention, or full treatment; and (3) other treatment options identified by the patient.11 In contrast to a declaration regarding medical treatment, the MOST form is signed by the patient (or the authorized surrogate decision maker) and the patient's physician...