A New Choice on the Horizon in Estate Planning

A New Choice on the Horizon in Estate Planning

As medicine and technology have advanced to such a degree that we can arrest illness, or if sick, lengthen our lives in the face of unspeakable tragedy, illness or deformity, what are our rights as to quality of life? When can we have a say in our own demise? If left to technology, science, medicine and machines, some of us may go on indeterminably. Should the answers to these questions become an integral part of our estate plan?

The goal of an estate plan is to reduce or eliminate uncertainties upon our passing; formulating a definitive plan of what happens to our wealth, our property, and our families and how we attempt to direct that process. The cornerstones of an effective estate plan have included four elements:

1. The last will and testament
2. The health care proxy
3. The financial power of attorney
4. The trust.

Will we be allowed one day to include a directive on our right to die?

You may remember back in 2014, Brittany Maynard shed a light on this divisive issue by moving from California to Oregon so that she could be the determinant in her own debate. Brittany had an inoperable brain tumor and the state of California had not yet passed a Death with Dignity statute. Her only option was to move to Oregon, become a resident of the state and then petition her doctor for aid in dying.

This state legislative issue has been taken up in one form or another by over 30 states to date. Oregon, which established the template for other state statutes due to its early enactment in November 1997, was recognized last month on its 20th anniversary of implementation. Currently, four additional states and the District of Columbia have enacted similar legislation (California, Colorado, Vermont, and Washington). So, what is it and how does it work?

Using the Oregon statute as a guide, a terminally ill patient can request aid in dying (lethal drug dose) from a board-certified physician if they meet the following criteria:

1. They are considered an adult (18 years of age or older).
2. They are currently a resident of the state.
3. They remain capable of making and communicating health care decisions for themselves.
4. They have been diagnosed with a terminal illness with only 6 months or fewer to live.

It is the physician who determines if the criteria are met and it is the physician whose consent is requested to dispense the lethal dose. He or she is not required by law to give consent and can always refuse to dispense. If an agreement is reached however, the dispensing physician is not required to administer the dose or even be present when it is administered. The dose can be self-administered by the patient at a time of his or her choosing.

Assuming the criteria is met, and a willing physician has been consulted, the patient must make two oral requests to the physician 15 days apart. In addition, the patient must also present a written request, signed by the patient in front of two witnesses, one of whom may not be a related family member. These requests are time structured in order to allow thoughtful reflection on the decision at hand by all parties involved. The request can be rescinded at any time.

So, what is the impact on our estate plan? Does hastening death affect annuity and/or insurance plans? With the Oregon statue as the example, the patient’s actions in ingesting medication to end his/her life in a humane and dignified manner have been determined to have no effect on these policies and no impact on wills or contracts. The patient’s action does not constitute suicide and physicians are exempted from any criminal or civil charges as a result of their voluntary participation.

How does this differ from the health care proxy? The health care proxy, already an integral piece of the estate plan framework, defines what extraordinary medical measures may be taken on your behalf, when you are too ill or incapacitated to communicate your own wishes. This advance directive deals with the life sustaining treatments you would like implemented or denied, and delineates who can speak for you on these issues. For example, do you want CPR, (cardiopulmonary resuscitation), artificial nutrition, artificial hydration or breathing machines to prolong your life? The aid in death document, on the other hand, would deal with your decision to hasten death in the face of terminal illness. You, as the patient, are still competent, but more importantly, you, as the patient, can and must make your own decisions.

Continued thought and planning should incorporate any new or anticipated legislation in this estate and trust area. Several common problems associated with the implementation of the aid in dying process have been identified and may require a long lead time to overcome. These issues include starting the process too late, finding a physician who will agree to participate, finding a health care facility that will allow participation and its high cost. The federal government’s health programs will not cover the cost of the drug. If you begin the process too late, you may become mentally incapacitated before you can complete the request procedure. Will it be best to draft an aid in dying document as part of your estate plan that will recognize your current mindset with regard to this issue, confirming your desire to participate in this process and detailing who, what, where and how you intend to proceed? These steps appear to align well with the aforementioned goals of estate planning by helping to provide clarity in an otherwise emotional and highly stressful period.

Though this is a highly divisive issue and a uniquely personal issue, it most likely will be one that remains on the radar in many states. Massachusetts has had aid in dying bill under consideration seven times in the past and is eligible to return an initiative to the ballot in 2018. New Jersey introduced legislation in 2016 which remains in committee. While Florida has taken no action on this issue, similar bills have been introduced in the New York legislature in 2017, where both the House and Senate versions have yet to come up for a vote.

For more information on which trust is best for you, please feel free to contact your Withum Tax Advisorsby filling out the form below.