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Death and Dying Death is the end of life. Dying is the process of approaching death, including the choices and actions involved in that process.

Death has always been a central concern of the law. The many legal issues related to death include laws that determine whether a death has actually occurred, as well as when and how it occurred, and whether or not another individual will be charged for having caused it. With the development of increasingly complex and powerful medical procedures and devices in the middle and late twentieth century, the U.S. legal system has had to establish rules and standards for the removal of life-sustaining medical care. This would include, for example, withdrawing an artificial respirator or a feeding tube from a comatose person, or withholding chemotherapy from a terminally ill cancer patient. Such laws and judicial decisions involve the right of individuals to refuse medical treatment—sometimes called the right to die—as well as the boundaries of that right, particularly in regard to the state's interest in protecting life and the medical profession's right to protect its standards. The issues involved in death and dying have often pitted Patients' Rights groups against physicians' professional organizations as each vies for control over the decision of how and when people die.

Defining Death in the Law The law recognizes different forms of death, not all of them meaning the end of physical life. The term civil death is used in some states to describe the circumstance of an individual who has been convicted of a serious crime or sentenced to life imprisonment. Such an individual forfeits his or her Civil Rights, including the ability to marry, the capacity to own property, and the right to contract. Legal death is a presumption by law that a person has died. It arises following a prolonged absence, generally for a prescribed number of years, during which no one has seen or heard from the person and there is no known reason for the person's disappearance that would be incompatible with a finding that the individual is dead (e.g., the individual had not planned to move to another place). Natural death is death by action of natural causes without the aid or inducement of any intervening instrumentality. Violent death is death caused or accelerated by the application of extreme or excessive force. Brain death, a medical term first used in the late 1960s, is the cessation of all functions of the whole brain. Wrongful death is the end of life through a willful or negligent act.

In the eyes of the law, death is not a continuing event but something that takes place at a precise moment in time. The courts will not wield authority concerning a death. The determination of whether an individual has died, and the way in which this is proved by the person's vital signs, is not a legal decision but rather a medical judgment. The opinion of qualified medical personnel will be taken into consideration by judges when a controversy exists as to whether an individual is still alive or has died.

Legal Death and Missing Persons There is a legal presumption that an individual is alive until proved dead. In attempting to determine whether a person has died after having been missing for a certain period of time, the law assumes that the person is alive until a reason exists to believe otherwise.

The common-law rule is that where evidence indicates that the absent person was subject to a particular peril, he or she will be legally presumed dead after seven years unless the dis-appearance can be otherwise explained. The seven-year interval may be shortened if the state decides to enact legislation to change it. Some states may permit the dissolution of a marriage or the administration of an estate based on a mysterious disappearance that endures for less than seven years. A majority of states will not make the assumption that a missing person is dead unless it is reasonable to assume that the person would return if still alive.

A special problem emerges in a situation where a person disappears following a threat made on his or her life. Such an individual would have a valid reason for voluntarily leaving and concealing his or her identity. Conversely, however, the person would in fact be dead if the plot succeeded. A court would have to examine carefully the facts of a particular case of this nature.

In some states, the court will not hold that an individual has died without proof that an earnest search was made for him or her. During such a search, public records must be consulted, wherever the person might have resided, for information regarding marriage, death, payment of taxes, or application for government benefits. The investigation must also include questioning of the missing person's friends or relatives as to his or her whereabouts.

Death Certificates The laws of each state require that the manner in which an individual has died be determined and recorded on a death certificate. Coroners or medical examiners must deal with issues establishing whether someone can be legally blamed for causing the death. Such issues are subsequently determined by Criminal Law in the event that someone is charged with Homicide, and by Tort Law in the event of a civil suit for Wrongful Death.

The Nature of Dying Because of the many advances in modern medicine, the nature of death and dying has changed greatly in the past several centuries. A majority of people in industrial societies such as the United States no longer perish, as they once did, from infectious or parasitic diseases. Instead, life expectancies range above 70 years and the major causes of mortality are illnesses such as cancer and heart disease. Medicine is able to prolong life by many means, including artificial circulatory and respiratory systems, intravenous feeding and hydration, chemotherapy, and antibiotics.

The cultural circumstances of death have changed as well. A study published by the American Lung Association in the late 1990s, indicated that 90 percent of patients who are in intensive care units of hospitals die as a result of surrogates and physicians deciding together to withhold life-sustaining medical care. This rate doubled from earlier in the decade.

Brain Death In traditional Western medical practice, death was defined as the cessation of the body's circulatory and respiratory (blood pumping and breathing) functions. With the invention of machines that provide artificial circulation and respiration that definition has ceased to be practical and has been modified to include another category of death called brain death. People can now be kept alive using such machines even when their brains have effectively died and are no longer able to control their bodily functions. Moreover, in certain medical procedures, such as open-heart surgery, individuals do not breathe or pump blood on their own. Since it would be wrong to declare as dead all persons whose circulatory or respiratory systems are temporarily maintained by artificial means (a category that includes many patients undergoing surgery), the medical community has determined that an individual may be declared dead if brain death has occurred—that is, if the whole brain has ceased to function, or has entered what is sometimes called a persistent vegetative state. An individual whose brain stem (lower brain) has died is not able to maintain the vegetative functions of life, including respiration, circulation, and swallowing. According to the Uniform Determination of Death Act (§ 1, U.L.A. [1980]), from which most states have developed their brain death statutes, "An individual who has sustained either (1) irreversible cessation of circulatory and respiratory function, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead."

Brain death becomes a crucial issue in part because of the importance of organ transplants. A brain-dead person may have organs—a heart, a liver, and lungs, for example—that could save other people's lives. And for an individual to be an acceptable organ donor, he or she must be dead but still breathing and circulating blood. If a brain-dead person is maintained on artificial respiration until his or her heart fails, then these usable organs would perish. Thus, the medical category of brain death makes it possible to accomplish another goal: saving lives with organ transplants.

The Right to Die: Individual Autonomy and State Interests The first significant legal case to deal with the issue of termination of life-sustaining medical care was in re quinlan, 70 N.J. 10, 355 A. 2d 647. This 1976 case helped resolve the question of whether a person could be held liable for withdrawing a life-support system even if the patient's condition is irreversible. In 1975, Karen Ann Quinlan inexplainably became comatose and was put on a mechanical respirator. Her parents authorized physicians to use every possible means to revive her, but no treatment improved her condition. Although doctors agreed that the possibility of her recovering consciousness was remote, they would not pronounce her case hopeless. When her parents themselves lost all hope of Quinlan's recovery, they presented the hospital with an authorization for the removal of the respirator and an exemption of the hospital and doctors from responsibility for the result. However, the attending doctor refused to turn off the respirator on the grounds that doing so would violate his professional oath. Quinlan's parents then initiated a lawsuit asking the court to keep the doctors and the hospital from interfering with their decision to remove Quinlan's respirator.

In a unanimous decision, the New Jersey Supreme Court ruled that Quinlan had a constitutional right of privacy that could be safeguarded by her legal guardian; that the private decision of Quinlan's guardian and family should be honored; and that the hospital could be exempted from criminal liability for turning off a respirator if a hospital ethics committee agreed that the chance for recovery is remote. Quinlan was removed from the respirator, and she continued to live in a coma for ten years, nourished through a nasal feeding tube.

In cases following Quinlan, courts have ruled that life-sustaining procedures such as artificial feeding and hydration are the legal equivalent of mechanical respirators and may be removed using the same standards (Gray v. Romeo, 697 F. Supp. 580 [D.R.I. 1988]). Courts have also defined the right to die according to standards other than that of a constitutional right to privacy. The patient's legal right to refuse medical treatment has been grounded as well on the common-law right of bodily integrity, also called bodily self-determination, and on the liberty interest under the due process clause of the Fourteenth Amendment. These concepts are often collected under the term individual autonomy, or patient autonomy.

Subsequent cases have also defined the limits of the right to die, particularly the state's interest in those limits. The state's interests in cases concerning the termination of medical care are the preservation of life (including the prevention of suicide), the protection of dependent third parties such as children, and the protection of the standards of the medical profession. The interests of the state may, in some cases, outweigh those of the patient.

In 1990, the U.S. Supreme Court issued its first decision on the right-to-die issue, Cruzan v. Director of Missouri Department of Health, 497 U.S. 261, 110 S. Ct. 2841, 111 L. Ed. 2d 224. Cruzan illustrates the way in which individual and state interests are construed on this issue, but leaves many of the legal questions on the issue still unresolved. Nancy Cruzan was in a persistent vegetative state as a result of severe brain injuries suffered in an automobile accident in 1983. She had no chance of recovery, although with artificial nutrition and hydration could have lived another 30 years. Her parents' attempts to authorize removal of Cruzan's medical support were first approved by a trial court and then denied by the Missouri Supreme Court. Her parents then appealed the case to the U.S. Supreme Court.

The Court held that the guarantee of liberty contained in the Fourteenth Amendment to the Constitution does not prohibit Missouri from insisting that "evidence of the incompetent [patient's] wishes as to the withdrawal of treatment be proved by clear and convincing evidence." The Court left other states free to adopt this "clear-and-convincing evidence" standard but did not compel them to do so. Thus, existing state laws remained the same after the Cruzan decision. Although the Court affirmed that a competent patient has a constitutionally protected freedom to refuse unwanted medical treatment, it emphasized that an incompetent person is unable to make an informed choice to exercise that freedom.

The Court explained that the state has an interest in the preservation of human life and in safeguarding against potential abuses by surrogates and is therefore not required to accept the "substituted judgment" of the patient's family. The Court agreed with the Missouri Supreme Court ruling that statements made by Cruzan to a housemate a year before her accident did not amount to clear-and-convincing proof that she desired to have hydration and nutrition withdrawn. Cruzan had allegedly made statements to the effect that she would not want to live should she face life as a "vegetable." There was no testi mony that she had actually discussed withdrawal of medical treatment, hydration, or nutrition.

After the Court's decision, Cruzan's parents went back to the Missouri probate court with new evidence regarding their daughter's wishes. On December 14, 1990, a Missouri judge ruled that clear evidence of Cruzan's wishes existed, and permitted her parents to authorize withdrawing artificial nutrition and hydration. Cruzan died on December 27, 12 days after feeding tubes were removed.

Advance Directives A court must consider many factors and standards in right-to-die cases. It must determine, for example, whether a patient is competent or incompetent. A competent patient is deemed by the court to be able to give informed consent or refusal relative to the treatment under consideration, whereas an incompetent patient (e.g., a patient in a coma) lacks the decision-making capacity to do so. According to the principle of individual autonomy, the court must honor the informed consent of competent patients regarding their medical care.

For incompetent patients who cannot make informed decisions regarding their care, an advance directive may provide a means of decision making for the termination of life-supporting treatment. An advance directive is a document, prepared in advance of incompetence, which gives patients some control over their health care after they have lost the ability to make decisions owing to a medical condition. It may consist of detailed instructions about medical treatment, as in a Living Will; or the appointment of a proxy, or substitute, who will make the difficult choices regarding medical care with the patient's earlier directions in mind. The appointment of a proxy is sometimes called a proxy directive or durable power of attorney. The patient names a proxy decision maker when he or she is competent. In other cases, the physician may appoint a proxy, or the court may appoint a legal guardian who acts on behalf of an incompetent person. Usually, a relative such as a spouse, adult child, or sibling is chosen as a proxy. If an advance directive provides adequate evidence of a patient's wishes, a decision about the termination of life support can often be made without involving a court of law.

For an incompetent patient whose preferences regarding medical care are known from prior oral statements, the patient's proxy may make a substituted judgment—that is, a judgment consistent with what the patient would have chosen for himself. If no preference regarding medical treatment is known, the standard for the proxy's decision is the "best interests of the patient." According to that standard, the proxy's decision should approximate what most reasonable individuals in the same circumstances as the patient would choose. Individual states have statutes governing the requirements for living wills and advance directives.

Power of Attorney A written document in which one person (the principal) appoints another person to act as an agent on his or her behalf, thus conferring authority on the agent to perform certain acts or functions on behalf of the principal. Powers of attorney are routinely granted to allow the agent to take care of a variety of transactions for the principal, such as executing a stock power, handling a tax audit, or maintaining a safe-deposit box. Powers of attorney can be written to be either general (full) or limited to special circumstances. A power of attorney generally is terminated when the principal dies or becomes incompetent, but the principal can revoke the power of attorney at any time.

A special type of power of attorney that is used frequently is the "durable" power of attorney. A durable power of attorney differs from a traditional power of attorney in that it continues the agency relationship beyond the incapacity of the principal. The two types of durable power of attorney are immediate and "springing." The first type takes effect as soon as the durable power of attorney is executed. The second is intended to "spring" into effect when a specific event occurs, such as the disability of the principal. Most often, durable powers of attorney are created to deal with decisions involving either property management or health care.

Durable powers of attorney have become popular because they enable the principal to have her or his affairs handled easily and inexpensively after she or he has become incapacitated. Before the durable power of attorney was created, the only way to handle the affairs of an incapacitated person was to appoint a guardian, a process that frequently involves complex and costly court proceedings, as well as the often humiliating determination that the principal is wholly incapable and in need of protection.

With a durable power of attorney, on the other hand, a principal can appoint someone to handle her or his affairs after she or he becomes incompetent, and the document can be crafted to confer either general power or power in certain limited circumstances. Because no judicial proceedings are necessary, the principal saves time and money and avoids the stigma of being declared incompetent.

The concept of the durable power of attorney was created in 1969 when the National Conference of Commissioners on Uniform State Laws promulgated the Uniform Probate Code (U.P.C. § 5–501). Ten years later, the provisions of the code dealing with the durable power of attorney were modified and published as the Uniform Durable Power of Attorney Act (UDPA). All fifty states recognize some version of the durable power of attorney, having adopted either the UDPA or the Uniform Probate Code, or some variation of them. Versions of the durable power of attorney vary from state to state. Certain powers cannot be delegated, including the powers to make, amend, or revoke a will, change insurance beneficiaries, contract a marriage, and vote.

power of attorney n. a written document signed by a person giving another person the power to act in conducting the signer's business, including signing papers, checks, title documents, contracts, handling bank accounts and other activities in the name of the person granting the power. The person receiving the power of attorney (which means agent) is "attorney in fact" for the person giving the power, and usually signs documents as "Melinda Hubbard, attorney in fact for Guilda Giver." There are two types of powers of attorney: a) general power of attorney which covers all activities, and b) special power of attorney which grants powers limited to specific matters, such as selling a particular piece of real estate, handling some bank accounts, or executing a limited partnership agreement. A power of attorney may expire on a date stated in the document or upon written cancellation. Usually the signer acknowledges before a notary public that he/she executed the power, so that it is recordable if necessary, as in a real estate transaction.

Living Will A written document that allows a patient to give explicit instructions about medical treatment to be administered when the patient is terminally ill or permanently unconscious; also called an advance directive.

With improvements in modern medicine, the life of persons who are terminally ill or permanently unconscious can be prolonged. For increasing numbers of persons, the decision of whether to prolong life is being made in the form of a written document called a living will. The living will is one type of advance directive that may be used by a person before incapacitation to outline a full range of treatment preferences or, most often, to reject treatment.

A living will extends the principle of consent, whereby patients must agree to any medical intervention before doctors can proceed. It allows the patient to guide health care for the future when she may be too ill to make decisions concerning care. It can be revoked by the patient at any time. For many the living will preserves personal control and eases the decision-making burden of a family.

Forty-two states and the District of Columbia have living-will statutes that make a properly executed living will legally binding. In states that do not have a statute, living wills stand as a clear expression of the patient's wishes. Living-will statutes require that the person be legally competent to execute the will and that the will be witnessed by at least one disinterested person. Once a person who has a valid living will is terminally ill, the attending physician and a second physician must certify in writing that there is no reasonable expectation for improvement in the patient's condition and that death will occur as a result of the incurable disease, illness, or injury.

Upon this certification the doctor is obligated to follow the instructions contained in the living will. This typically means the patient does not want any medical procedures that serve only to prolong but not prevent the dying process. Therefore, if the patient is unable to breathe, the doctor is not required to connect the patient to a respirator. A patient may state in a living will that he does not want a feeding tube if unable to swallow food. Another common directive is to forbid resuscitation if the patient's heart stops beating.

Living wills have been criticized because they are usually limited to the withholding or withdrawing of "life-sustaining" procedures from a patient with a "terminal condition" or "terminal illness," and thus do not accurately reflect the broad legal right to refuse treatment. In addition, by their very nature, living wills reduce the patient's wishes to writing, and thus may be too rigid (or too vague) to adapt to changing interests or anticipate future circumstances.

To overcome these problems, many states have enacted statutes that permit a competent adult to designate a surrogate decision maker (also termed a health care proxy or agent) to make health care decisions for her in the event of incapacitation. The proxy's authority is usually not limited to decisions about life-sustaining treatment. A proxy can supplement a living will.

All fifty states have durable-power-of-attorney statutes that permit an individual (the principal) to designate another person (the attorney in fact) to perform specific tasks during any period of incapacity. Though most of these statutes do not expressly refer to medical care decisions, no court has ruled that they preclude the delegation of medical decision-making authority to the attorney in fact.

living will n. also called "a durable power of attorney," it is a document authorized by statutes in all states, in which a person appoints someone as his/her proxy or representative to make decisions on maintaining extraordinary life-support if the person becomes too ill, is in a coma or is certain to die. In most states the basic language has been developed by medical associations or other experts and may provide various choices as to when such maintenance of life can be terminated. The decision must be made in consultation with the patient's doctor. The living will permits a terminal patient to die in dignity and protects the physician or hospital from liability for withdrawing or limiting life support.



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