History of Living Wills

icon-lastwillWhen doing an estate plan, a person should not only consider writing a will; they should also consider end-of-life documents, to include a living will and do-not-resuscitate orders. They should also consider executing a health care durable power of attorney (where you appoint one or more persons to make health care decisions for you when you are unable to make decisions for yourself). After this is done, remember to revisit them in the event of divorce and/or remarriage.

Living wills have an interesting history. It dates back to 1975. Many of you will recall the case of Karen Quinlan. This was a New Jersey case that brought public attention to the question of whether an individual could refuse life-prolonging medical treatment in a situation where they were terminally ill without any reasonable hope of recovery. Karen Quinlan was a 21 year old woman. She stopped breathing for periods of time as a result of alcohol and drug use. She was then hospitalized in a deep coma. She was then attached to a machine that kept her alive. Medical opinions indicated that she was in a persistent vegetative state and she could never be restored to cognitive life.

Karen Quinlan’s father, a Roman Catholic, went to his church for advice. He was advised that his desire to end his daughter’s life was a morally correct decision. Mr. Quinlan then became his daughter’s court-appointed guardian. His intention was to order the hospital and the physicians to end the use of the respirator that was keeping Karen Quinlan alive. In the end, the New Jersey Supreme Court held that Karen Quinlan (acting through her guardian) had a right to privacy. As such, she had the right to terminate her own life through natural forces. Subsequently, in another New Jersey case, the Quinlan holding was extended by holding that a competent adult has a constitutional right to have medical treatment discontinued. This would include the right to decline intravenous feeding, even though discontinuance meant almost certain death.

In 1977, New Hampshire attempted to pass legislation allowing for living wills. After passing both houses, Governor Thompson vetoed the bill and his veto was sustained. In 1983, another bill was passed and this time, Governor Sununu vetoed the bill and his veto was sustained. Two years later, a third bill was passed. It, too, was vetoed, but the veto was overridden and New Hampshire had its first living will law. Because of some case law that came down later, New Hampshire’s living will law was substantially rewritten in 1991.

A living will is a document which contains the express direction that no life-sustaining procedures be taken when the person executing the document is in a terminal condition or permanently unconscious, with no hope of recovery and is unable to participate in the decision – making process. I urge you to think about end-of-life issues. What are your intentions? If you have intentions, these intentions should be embodied in a living will.

R. Peter Decato

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