In 1997, Oregon enacted the Death With Dignity Act (“DWDA”), allowing Oregonians the right to end their lives under certain circumstances.[1] The terminally ill person must be at least eighteen (18) years old; a resident of Oregon; capable of communicating health care decisions for him or herself; and diagnosed with a terminal illness that will lead to death within six months (all as determined by an attending physician).[2] Furthermore, the patient must make two (2) oral requests, at least fifteen (15) days apart; he or she must provide a written request to the attending physician; and a consulting physician must confirm the attending physician’s diagnosis.[3] This is not an exhaustive list of the requirements, but it will suffice for the purposes of this article.
Keep in mind, the process is not considered “euthanasia”, as that would require the doctor to administer the medication.[4] Instead, the patient must be able to take the medication, orally, on his or her own accord.[5]
I familiarized myself with Oregon’s Death With Dignity Act when I wrote a paper about it for my “Economics of Health Care” class in college. Since then, six (6) other states (California, Colorado, Hawaii, New Jersey, Vermont, and Washington) and the District of Colombia have passed their own versions of the DWDA, with nearly identical requirements.[6] Many people feel the DWDA allows individuals some final sense of control over death and see it as a humane way to end suffering. Still others feel the DWDA allows individuals to “play God” or fear that people may try to abuse or misuse the system despite the safeguards and requirements in place.
New Jersey is the most recent state to enact a version of a DWDA; it becomes effective August 1, 2019.[7] Interestingly, none of the states that have a DWDA have been able to amend or expand the act from its relatively narrow scope of individuals.[8] Legislators in New York State fear the current Death With Dignity laws do not go far enough.[9] Most commonly, terminally ill cancer patients are benefitting from the law, but people with degenerative diseases may never be able to use it. For example, individuals with ALS, Huntington’s disease, oral and laryngeal cancers, strokes, or Parkinson’s disease, among others, may have a life span of ten years or more, disqualifying them from immediately requesting to end their life.[10] However, by the time they reach the six-months-to-go mark they may no longer be able to verbalize their wishes or may not be able to physically swallow the prescription.[11]
Oregon is currently working to amend its legislation to add an option for an injection instead of the sole option of the pills.[12] Other states are pushing for special language in health care directives allowing an agent to elect for Death With Dignity for the terminally ill patient who is no longer able to make his/her wishes known verbally.[13] For perspective, Canada has Death With Dignity laws which allow physicians to administer the medication to those patients who are unable to do so on their own and does not require the request to be made within a certain time frame.[14]
No matter your feelings on the subject, it is important as estate planning attorneys to understand how this legislation may work – or may not work – in conjunction with health care directives in your state. Right now, because the laws require the terminally ill individual to make a verbal request, an advance directive cannot legally authorize a Health Care Agent to make a request under the DWDA for the terminally ill individual, in any state.
Even if it is not common to have terminally ill clients or clients who fit into the relatively limited rules of the DWDA, it is important to know how the law works in your state. And, as the laws continue to evolve, it is important to make sure your clients know what their Health Care Directive does and does not permit. Even though we are not doctors it is our job to stay on top of the law side of the health care industry.
– Brittney Shearin, Esq.
[1] Oregon Health Authority, Death With Dignity Act, Oregon State Website https://www.oregon.gov/oha/PH/PROVIDERPARTNERRESOURCES/EVALUATIONRESEARCH/DEATHWITHDIGNITYACT/Pages/index.aspx (last visited May 13, 2019)
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Jacobo, Julia, New Jersey Governor Signs Law Allowing Terminally Ill Patients to End Their Lives, ABC News (April 14, 2019) https://abcnews.go.com/US/jersey-governor-signs-law-allowing-terminally-ill-patients/story?id=62391589
[7] Id.
[8] Bump, Bethany, New York’s Right-to-Die Debate Omits Important Group, Times Union Newspaper (last updated April 26, 2019) https://www.timesunion.com/news/article/New-York-s-right-to-die-debate-forgets-people-13797085.php
[9] Id.
[10] Id.
[11] Id.
[12] Hayes, Elizabeth, Details Emerge Surrounding Controversial Changes to Death With Dignity Act, Portland Business Journal (May 10, 2019) https://www.bizjournals.com/portland/news/2019/05/10/details-emerge-surrounding-controversial-change-to.html
[13] Bump, supra note 8.
[14] Id.
