When California recently became the fourth State to choose to enact “Death with Dignity” legislation, I thought it might be time to talk through a Health Care Directive (HCD) in Minnesota and the scope of its authority. This is by no means a discussion about all options you may wish to include in your HCD, but it addresses certain issues that may or may not be addressed when directing end-of-life decisions, especially when your illness is complicated by dementia. This entry is specifically meant to 1) encourage individuals who may not have a HCD yet to execute one, and 2) educate individuals who want to more fully understand the scope of authority of their HCD.
A HCD is a legal document, which, if executed according to Minnesota law, it allows an individual to do one or more of a number of things including, but not limited to:
- selecting an agent who may make health care decisions for you when you are not able to do so yourself;
- directing burial/funeral wishes and arrangements;
- articulating wishes and concerns about how and where you receive your care;
- articulating what kinds of treatment you desire under what kind of circumstances; and
- many other wishes and directions.
Of particular concern is “directing death.” Recently, L. J. Johnson wrote in the American Bar Association’s Journal (June, 2015) that “one in three seniors will die with some form of dementia, according to the Alzheimer’s Association.” The author continued to discuss that with those facts, it was not a surprise that there is an increased interest in understanding and considering end-of-life strategies, specifically VSED (Voluntarily Stopping Eating and Drinking). Reading this article led me to outline some basic facts and realities for those who are concerned for themselves or their loved ones about their choices in “directing death” when coming to the end of their lives, and/or those who are concerned about how dementia may complicate those directions and documents they have carefully executed.
Legislation in Minnesota for “Death with Dignity:”
There currently exists no legislation in Minnesota like there is in Washington, Oregon, Vermont, and sometime in 2016, California. And, although there may be some day, it does not exist yet. The few states that have enacted legislation outline essentially the same things in their law – often referred to as “death with dignity.” In short, if you’re at least 18 years old, competent to make your own decision, have a terminal illness, and you have not one but two physicians confirming those facts, and you are presently able to make both the request (in some cases, more than once) and physically deliver your own medication, you may obtain prescription drugs that will end your life.
This choice is legal everywhere in the USA, because you have a right to refuse eating and drinking at any time. If you have the will-power and the capacity to make that choice, no one can stop you from making this decision. The problem arises, of course, when dementia of some kind complicates the legal and practical issues involved this choice.
Even if you have a HCD that is properly executed and clearly articulated, you have a right to revoke it at any time, and one of the ways you can revoke the entire thing or just part of it is by saying so – verbal revocation (among other ways). You have “revoked” your instructions – and, in most state, this is so even if you’re demented. So, if you have started the process of VSED, and then you ask for water or food, someone is legally obligated to give it to you – nurse, caregiver, physician, nursing home staff. Under most circumstances, that’s a good thing because you can change your mind and know that no one can force you to follow the instructions that at one time you thought were a good idea.
But, what about this situation when you’re asking for food and water, not understanding your surroundings or knowing the people present, not understanding that you are dying, that there is no chance of recovery, and that you previously made these plans when you were able to reasonably consider this potential scenario. You took the time to properly execute your instructions to use this strategy in these circumstances. Now, imagine how your family members will feel denying you that food/water request if you’re at home with them. Will they? Could they? Do you want them to? I think you see my point – there are legal and practical obstacles to strategies you planned when you were competent but are unfolding when you are presently no longer able to reasonably consider your circumstances because of dementia.
“Dementia Clause” in a HCD
I have been including “Dementia Clauses” in many of the HCD documents I draft. This clause addresses specifically whether one would like to be fed/hydrated artificially if one stops being able or forgets how to eat/drink. The issue here, however, is the above discussed revocation issue. Many are recommending carefully detailed wishes and video documentation. But, frankly, there is no way to legally insist on staff/physicians/family members following your wishes if you are verbally or otherwise revoking your wishes (this is uncharted territory!). So, make sure your agents understand what you want and when. If you are unable to speak, your agent may speak for you and ensure that your wishes are followed, assuming you don’t find other ways to communicate a revocation.
Revocation of your HCD
Revocation can happen with words, in writing, or with gesture – anyway that can clearly communicate your intent. Be assured that something you decide and execute can be undone – the issue is whether your circumstances, or the circumstances of someone for whom you are caring, are complicated with a diagnosis of dementia.
If you have questions or concerns about your own HCD or the HCD of another and you want to understand the scope of its authority, talk to an elder law attorney who practices in this area and has experience with this issue.
This blog is written by Bridget-Michaele Reischl, Attorney
DECORO LAW OFFICE, PLLC
This blog is not, nor shall it be deemed to be, legal advice or counsel. This blog does not create an attorney-client relationship with any reader. It is designed to encourage thoughtful consideration of important legal issues with the expectation that readers will seek professional advice from a licensed attorney.
Contact Bridget-Michaele Reischl at:
DECORO LAW OFFICE, PLLC
6 West 5th Street, Suite 800-D
Saint Paul, MN 55102