The following is an Article written by Stephen C. Hartnett, J.D., LL.M., Associate Director of Education, American Academy of Estate Planning Attorneys.
California passed a new law permitting a physician to prescribe a life-ending drug for a terminal patient. The California End of Life Option Act is effective this June. It dramatically increases the number of people in the United States who live in a state allowing someone to choose to end their life with the assistance of a physician.
Besides California, such end-of-life decisions are only legal in the states of Oregon, Vermont, and Washington by statute and Montana by court ruling. For now, it is illegal elsewhere. But, others will be watching what happens in California.
Under the law, an adult with capacity may request a prescription for an aid-in-dying drug if:
• The individual’s attending physician has diagnosed the individual with a terminal disease (less than 6 months to live), and a consulting physician confirms this diagnosis,
• The individual has voluntarily expressed the wish to receive a prescription for an aid-in-dying drug,
• The individual is a resident of California (CA driver’s license, voter registration, income tax return, or other evidence),
• The individual documents his or her request pursuant to the requirements set forth in the statute, which include at least two separate oral requests at least 15 days apart and a written request,
• The individual has the physical and mental ability to self-administer the aid-in-dying drug.
A request for a prescription for an aid-in-dying drug may be made solely and directly by the individual diagnosed with the terminal disease and not through a power of attorney, agent, or otherwise. Similarly, the requests must be received directly by the physician and not a staff person or assistant.
An individual may at any time withdraw or rescind his or her request for an aid-in-dying drug, or decide not to ingest an aid-in-dying drug, without regard to the individual’s mental state. In other words, even if the person no longer has capacity, they may decide not to go through with the use of the aid-in-dying drug.
Estate planning attorneys in California and around the country will be facing questions about end-of-life choices. One question sure to be asked, you cannot allow your agent to request the aid-in-dying drug, even if you wanted to do so. Thus, the law does not really help those with Alzheimer’s disease or other illnesses where the person loses their capacity before they are terminal. Another item to note, at least in California, you cannot reward or penalize someone in your trust or will for choosing or withdrawing consent for assisted suicide. Many more issues are sure to arise as the law begins to be implemented in America’s most populous state.
Here is a link to the new California law.
Here is an article with some FAQ about the California law.
Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
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