LIVING WILL ADVANCE DIRECTIVE

THE OKLAHOMA ADVANCE DIRECTIVE

This is from an outline where I spoke about the Oklahoma living will or advance directive. I hope that you will find it interesting.

• Introduction

• The Oklahoma statutory law, “Oklahoma Rights of the Terminally Ill or Persistently Unconscious Act” 63 OS §§3101.1 et. seq.

• Directive to Physician executed under Previous statutory law, “Oklahoma Natural Death Act” up to September 1, 1992 is valid

• The Oklahoma Advance Directive Form

• The United States Supreme Court Decision

• Seminal decision Cruzan v. Director, Missouri Dept. Of Heath, 1120 S.Ct 2841 (1990)

• Since 1990 the law of the United States

• The Facts about Nancy Beth Cruzan

• The Court’s analysis of the law

• The Supreme Court holding allowing everyone to make the choice, of whether to refuse medical care, even if death will result
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• How to make that decision when the patient is incompetent and has not signed an advance directive or living will

• Oklahoma “Hydration and Nutrition for Incompetent Patients Act” 63 OS §3080.1 et. seq.

• “It shall be presumed that every incompetent patient has directed his health care providers to provide him with hydration and nutrition to a degree that is sufficient to sustain life.”

• To overcome presumption that everyone wants to be kept alive

• The patient told his or her doctor his wishes. The treating doctor knows by clear and convincing evidence that the patient when competent decided on the basis of information sufficient to constitute informed consent that artificially administered hydration and nutrition should be withheld or withdrawn.

• A court order is obtained. A court finds by clear and convincing evidence that the patient when competent decided on the basis of information sufficient to constitute informed consent that artificially administered hydration and nutrition should be withheld or withdrawn.

• There is an advance directive. The patient signed an Advance Directive authorizing the withholding or withdrawal of artificially administered food and water

• Will cause severe pain or not medically possible. The treating physician and another consulting physician agree that artificially administered hydration and nutrition will itself cause severe pain or it is not medically possible to administer

• Death is imminent. The treating physician and another consulting physician believe the patient is irreversibly incompetent, in the final stage of a terminal illness and death is imminent and death will not result from withholding or withdrawing artificially administered hydration and nutrition.

• Oklahoma “Uniform Determination of Death Act” 63 OS §3121, et. seq.

• Someone is not dead until their heart and breathing cannot be restored or their brain is completely dead

• Irreversible cessation of circulatory and respiratory functions is dead

• Irreversible cessation of all functions of the entire brain, including brain stem is dead

• All reasonable attempts to restore spontaneous circulatory or respiratory functions shall first be made before declaration of death.

• The Florida Supreme Court and Theresa Marie Schiavo

• 2001 original Florida decision In Re Guardianship of Schiavo, 780 So.2d 176 (Fla. App.2 Dist. 2001)

• The facts about Theresa Marie Schiavo

• The Florida Statute, Fla. Stat. §765.401(3):

“Before exercising the incapacitated patient’s rights to select or decline healthcare,… a proxy’s decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence that the decision would have been the one the patient would have been the one the patient would have chosen had the patient been competent.”

• Clear and convincing evidence appears to have been missing in this decision

• Findings of Fact commented upon by Florida Appellant court:

• She was very young (age 27)

• She was very healthy when tragedy struck

• She has no will

• She had no advance directive or living will

• She was raised Catholic by her parents, but was not a faithful practicing Catholic

• No religious advisor available to testify

• Only proof was her statements to friends and family about the dying process, which were few and all verbal

• The Florida court found simply on these statements that there was clear and convincing evidence

• Court admitted there was conflicting evidence going both ways
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• Court’s reasoning:

“In the final analysis, the difficult question that faced the trial court was whether Theresa Marie Schiavo, not after a few weeks in a coma, but after ten years in a persistent vegetative state that has robbed her mind of her cerebrum and all but the most instinctive of neurological functions, with no hope of a medical cure but with sufficient money and strength of body to live indefinitely, would choose to continue the constant nursing care and the supporting tubes in hopes that a miracle would somehow recreate her missing brain tissue, or whether she would wish to permit a natural death process to take its course and for her family members and loved ones to be free to continue their lives. After due consideration, we conclude that the trial judge had clear and convincing evidence to answer this question as he did.”

• Really came down to a “best interests” analysis rather than clear and convincing evidence of her wishes

• Federal appeals

• Theresa Schivo’s parents, the Schindler’s, appealed to federal court until 2005.

• Each federal court said the case came down to the Florida finding that there was clear and convincing evidence and the federal courts were not going to retry the case for the Schindlers

• Found that there had been due process and the Schindlers had their day in court

• Found that Cruzan was complied with and no constitutional law issue

• Evidence Standards

• Ordinary civil standard, by a preponderance of the evidence or more probably true than not, such as, “proof sufficient to persuade that the patient most likely would want to terminate life support”

• Clear and convincing, would be a higher standard than preponderance of the evidence, such as, “proof sufficient to persuade that the patient held a firm and settled commitment to the termination of her life support.”

• Oklahoma’s clear and convincing evidence standard:

• Found in “Oklahoma Do-Not-Resuscitate Act”

63 OS §3131.4(3) “Clear and convincing evidence for this purpose shall include oral, written, or other acts of communication between the patient, when competent, and family members, health care providers, or others close to the patient with knowledge of the patient’s personal desires”

• Definition of clear and convincing evidence found at Oklahoma Uniform Jury Instruction No. 3.2 Burden Of Proof–Clear And Convincing Evidence:

“When I say that a party has the burden of proving any proposition by clear and convincing evidence, I mean that you must be persuaded, considering all the evidence in the case, that the proposition on which the party has this burden of proof is highly probable and free from serious doubt.”

Matter of C.G., 637 P.2d 66, 71 n.12 (Okla. 1981) “Clear and convincing evidence is that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation sought to be established.”

• Bottom line. When there is not an advance directive in place and there is no medical hope for the individual, in other words, the individual is “living dead”, the court will latch onto just about any kind of proof and label it clear and convincing in favor of terminating life

• Lesson for all of us. Oklahoma has a very good Advance Directive form. Use it to make your wishes known.

If you do not have a Living Will or Advance Directive you can contact Brent D. Coldiron. He has over 42 years of experience. He knows how to advise you.

• Definition of Terminally Ill:

“Terminal condition” means an incurable and irreversible condition that, even with the administration of life-sustaining treatment, will, in the opinion of the attending physician and another physician, result in death within six (6) months”

• Definition of Vegetative State:

“Persistently unconscious” means and irreversible condition, as determined by the attending physician and another physician, in which thought and awareness of self and environment are absent”

• How to explain an advance directive:

The advance directive or living will only applies in two narrow circumstances:

• If you are or become terminally ill, meaning the doctors have no hope to save your life and you are dying and are expected to die within 6 months no matter what is done; or

• If you ever are in a vegetative state, which is called persistently unconscious, where you will never wake up because your brain is basically dead, or there is never any hope of you ever being able to have thought or awareness again. Not a coma, but a vegetative state.

• The proxy is someone who should know your wishes, who can make your health care decisions. A proxy can also sign a DNR for you. Pick proxies that you trust to make your life and death decisions. A proxy can also make decisions using reasonable judgment of what you would have decided if you were competent and able to decide for yourself.

• Who can sign an Advance Directive for Health Care

• Legal Adult over 18 years of age

• Of sound mind

• Do they know who they are?

• Do they know who their family members are?

• Do they know what an advance directive does and can they understand it when it is explained to them?

• Can they communicate their wish to sign the advance directive

• What if the individual is of sound mind and over 18 but cannot sign their name

• Although not specifically authorized by the statute, there is general law that such an individual can sign a document by his or her mark and there is a specific method for signing in this fashion [sign by mark, witness signs individuals name, then the two witnesses sign].

• Verbal organ donation is permitted, if recorded. 63 OS §2205

• No other person can sign an advance directive for another.

• Legal guardian is not authorized, but can sign a DNR

• Attorney-in-fact is not authorized, but can sign a DNR

• Spouse, child or other relative is not authorized to sign for the individual

• What if the individual wants to sign an advance directive, but has a religious believe that does not believe in physicians or medical treatment.

• Law allows in lieu of having an attending physician, that another person may be designated to serve in that role to determine if the individual cannot make their own decisions and authorize the proxy to make decisions

• What can the proxy do?

• Authority to make medical treatment decisions, including the withholding or withdrawal of life-sustaining procedures as indicated in the advance directive

• How to explain the section on Organ Donations

• Donation of Entire Body.

• Explain that entire body may or may not be accepted. A body cannot be accepted unless approved by the Anatomical Board of the State of Oklahoma.
• Donation of Body organs and tissue.

• Cover three common questions:

• Will the doctors wait until I am dead?

• Will it cost my family any medical expense?

• Will it disfigure my body for burial?

• Explain some organs will be used for research, such as the brain.

• Who may donate?

• Any adult of legal age and sound mind

• No limitation because of age. The elderly can be donors, although most do not want to, feeling their organs are too worn out to help anyone.

• Minors under 18 can sign an organ donation with the consent of a parent or legal guardian of the person, but not effective until reaches age 18.

• What if family disagrees with decision to donate organs?

State law, 63 OS §2203 provides that a valid organ donation in an advance directive, driver license, donor card, state identification card, on-line registration or in a will shall take precedence over the wishes of the family.

• Family can make organ donations when no organ donation indicated by the deceased

• In order of priority:

• Spouse

• Adult child

• Either parent

• Adult sibling

• Guardian of the person

• Any other person authorized or under obligation to dispose of the body (duty to bury falls upon spouse, then next of kin or government)

• When does the organ donation occur?

• After death or immediately before

• What if decedent made his wishes known that did not want to make an organ donation?

• No donation shall occur.

• If the individual does not want to make an organ donation, add to the form “No, I do not wish to make an organ donation” and have this initialed.

• Signing of the Advance Directive

• Individual should have read over the form or someone read it him or her

• Initial the form

• Yes means do not keep me alive by prolonging the process of my dying if I am terminally ill or persistently unconscious

• No means do everything possible so that it takes me as long as possible to die

• Yes means to not give me food and water by a feeding tuble

• No means to give me a feeding tube

• Paragraph (3) and the blank lines

• Most people write “None”

• Some examples of what might be written in this paragraph

• Withhold food but not water

• Judge Kelley story

• Play certain kind of music or read a book to me

• Don’t let certain persons in to see me

• Only withhold food or water until and if my proxy agrees.

• Who can be witnesses to an Oklahoma Advance Directive

• Adults over age 18

• Cannot be named in the will as a beneficiary or a relative, called an heir at law. A spouse, child, grandchild, parent or sibling or next of kin could all be heirs at law in the right case. The best policy is no blood relative or in-law can be a witness.

• No prohibition against nursing or other health care staff being witnesses to the advance directive

• Notary is not required for an advance directive

Brent D. Coldiron has over 42 years of experience practicing law.  He is a long time member of the National Academy of Elder Law Attorneys.  If you need legal assistance call Brent at (405) 478-5655 or 737-2244.  Brent has offices at 1800 East Memorial Road, Suite 106, Oklahoma City, OK 73131 and 2801 Parklawn Drive, Suite 503, Midwest City.  Give Brent a call.  He knows what to do!