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SENIOR ADVOCATE

By Liza Horvath

 

Directing Death

 

This week Sen. Bill Monning (D-Carmel) along with Sen. Lois Wolk (D-Davis) introduced legislation that would give a terminally ill adult the opportunity to seek medical aid-in-dying medication. Much publicity has been given to the End of Life Option Act (SB 128), and rightfully so – the majority of adults in an informal poll state that they would like the option of a painless passing under certain circumstances.

 

The bill provides that if two doctors agree that the patient is terminally ill with six months or less left to live and, if the patient has mental capacity, the patient would be able to request and receive aid-in-dying medication. Similar bills introduced in California previously did not pass. The climate has changed, however. Since the time those previous bills were presented, two notable things have happened that may push this law forward. One event is the highly publicized case of Brittany Maynard – the Bay Area woman who, after a fatal diagnosis, moved to the state of Oregon so she could receive a lethal prescription and end her life. The second game changer is the graying of America. As baby boomers age, we witness other boomers succumb to fatal illness and become acutely aware of the physical, mental and financial toll that a lingering illness can take – not only on the person dying, but on family as well.

 

On a number of fronts, including estate planning, this type of law presents both challenges and opportunities. Consider this: When completing our estate planning we execute a number of documents including a will, trust and an Advance Health Care Directive – the document that appoints an agent to make medical decisions for us if we can no longer articulate our own wishes. Presently, the advance directive is helpful in making our wishes clear with regard to situations in which you have an incurable and irreversible condition that would result in death in a relatively short time, if you are unconscious and, within a certain degree of medical certainty, will not regain consciousness, or if the risks and burdens of treatment would outweigh the expected benefits. In these cases, your agent can speak on your behalf and have treatment withheld, allowing you to die. If the aid-in-dying bill becomes law, should our Advance Health Care Directive forms be changed to provide the option for your agent to proactively seek medical help for you to die?

 

The bill as drafted is restricted to a patient that is terminally ill with six months or less left to live and to one who has mental capacity – but seniors routinely state that their most heartfelt fear is the loss of mental capacity, dementia or Alzheimer’s disease. Is it possible to bridge the span from a terminally ill, mentally competent patient with less than six months to a senior who, at a time when they had capacity, has clearly stated and documented their desire not to languish for months or years in a catatonic state of advanced dementia? The slope, while slippery, should be considered.

 

Baby boomers are a great generation – much has been accomplished and one thing is certain: If there is a way that we can pass a death with dignity or aid-in-dying bill into law and then morph that law into a way to curtail the possible financial, physical and mental toll if faced with a year’s long battle that Alzheimer’s may take before it finally kills us, we will solve that challenge.

Liza Horvath has over 30 years experience in the estate planning and trust fields and is the president of Monterey Trust Management, a financial and trust management company. This is not intended to be legal or tax advice. If you have a questions call (831)646-5262 or email liza@montereytrust.com

 


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