§6.3 PLANNING FOR HEALTH CARE DECISIONS
Clients, as they age, are increasingly likely to have had firsthand experience with the death of a loved one. Those experiences tend to leave indelible impressions on clients and fortify their resolve that their own end-of-life experiences will be on their own terms, especially if they lose capacity to express their wishes. Advising clients as they plan for incapacity with respect to their health care treatment tends to personalize the lawyer-client relationship in ways that planning for asset management and disposition does not. Offering such advice can also provide the ancillary benefit to the lawyer of making the practice of estate planning law more rewarding.
An abundance of do-it-yourself materials are available online from government and nonprofit agencies. Still, clients often fail to follow through with health care planning. Fortunately, some of these materials are of sufficient quality that the lawyer may add value for clients simply by evaluating these forms to find one that would satisfy the client's needs, referring clients to the form, and facilitating its execution. Of course, lawyers should understand the law regarding health care planning for incapacity, should be prepared to advise clients regarding questions or concerns, and should be able to prepare documents that address particular client needs when standard forms will not suffice.
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(1) Constitutional support for advance health care planning
Both the U.S. Constitution and the Washington State Constitution grant citizens the right to control health care treatment decisions at the end of life, including the right to refuse medical treatment. Several cases establish that right and indicate that controlling end-of-life care includes designating agents to make decisions during periods of incapacity. A few cases recognize limits on the right to control end of life decisions.
The Washington Supreme Court has held that both the U.S. and Washington constitutions authorize an adult, "who is incurably and terminally ill ... to refuse treatment that serves only to prolong the dying process ...." In re Welfare of Colyer, 99 Wn.2d 114, 120 660 P.2d 738 (1983). The court also recognized the individual's right to be free from "nonconsensual invasions of one's bodily integrity." Id. at 121. Colyer granted a husband, acting as guardian for his wife who was in a persistent vegetative state resulting from cardiac arrest, the authority to direct the withdrawal of life-sustaining treatment. See generally id.
The court subsequently elaborated the individual's right to have life-sustaining treatment withheld or withdrawn even for patients who never had capacity to express their wishes. In re Guardianship of Hamlin, 102 Wn.2d 810, 689 P.2d 1372 (1984). The court noted that the Natural Death Act (codified at Chapter 70.122 RCW and discussed in further detail below) demonstrates the public policy supporting the right to withhold or withdraw life-sustaining procedures but does not prescribe "the exclusive method for withholding or withdrawing life-sustaining procedures." Id. at 816. The Guardianship of Hamlin court authorized a guardian to control end-of-life decisions for an incapacitated patient based on the patient's best interests. See generally id.
In another Washington case, In re Guardianship of Ingram, 102 Wn.2d 827, 836 689 P.2d 1363 (1984), the court held that a person's autonomy with respect to medical care includes the right to choose a course of treatment that is less likely to result in a cure than another course of treatment or even to "refuse medical treatment altogether."
The United States Supreme Court, in Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 110 S.Ct. 2841, 111 L .Ed. 2d 224 (1990), affirmed a competent person's constitutionally protected liberty interest in refusing unwanted medical treatment. This interest permits states to apply a clear and convincing evidence standard to determine the patient's preference for refusing treatment when the patient is
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no longer competent. Id. In a concurring opinion, Justice O'Connor expanded on the right to control treatment decisions:
[T]he liberty guaranteed by the Due Process Clause must protect, if it protects anything, an individual's deeply personal decision to reject medical treatment, including the artificial delivery of food and water. ... [A state's duty] to give effect to the decisions of a surrogate decisionmaker ... may well be constitutionally required to protect the patient's liberty interest in refusing medical treatment.
Id. at 289.
To be sure, there are limits to the constitutional rights of a patient to bodily autonomy. In Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct. 2302, 138 L.Ed.2d 772 (1997), the United States Supreme Court upheld a now-repealed Washington statute banning physician aid in dying. In McNabb v. Department of Corrections, 163 Wn.2d 393, 180 P.3d 1257 (2008), the Washington Supreme Court authorized Department of Corrections officials to force feed an incarcerated individual on a hunger strike. The court held that the constitutional right "to refuse artificial means of nutrition and hydration," was outweighed by the state's interests in "orderly administration of the prison system, preservation of life, prevention of suicide, and maintenance of the ethical integrity of the medical profession." Id. at 403, 411.
(2) Statutory priority and responsibility of health care representatives
Washington law vests responsibility for giving informed consent for medical treatment on behalf of a patient who lacks capacity to the patient's representative. RCW 7.70.060. The statutory order of priority for serving as an incapacitated patient's representative is as follows: (1) court-appointed guardian, if any; (2) attorney in fact with health care authority; (3) spouse or state registered domestic partner; (4) adult children of the patient; (5) parents of the patient; and (6) adult brothers and sisters of the patient. RCW 7.70.065(1)(a). If more than one individual falls in the same level of priority, then all of the individuals in the same level must unanimously consent. RCW 7.70.065(1)(b)(ii). A health care provider may seek direction from an individual or class of individuals in a lower statutory priority after making reasonable efforts to locate and secure authorization from the competent individual or individuals higher in the order of priority unless someone in a higher priority position refuses to provide informed consent. RCW 7.70.065(1)(b)(i).
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A patient's representative, in deciding whether to provide informed consent to treatment, must ascertain in good faith whether the patient would consent to treatment. RCW 7.70.065(1)(c). In determining whether the patient, if competent, would have consented to the proposed health care, the patient's representative should consider all relevant factors, including (1) the patient's express wishes (even if the patient is incompetent); (2) the patient's prior statements regarding medical treatment; (3) the patient's religious or moral views; (4) the difference in the patient's prognosis if treatment is given or not given or if one treatment is chosen over another; (5) the risk of adverse side effects from treatment; (6) the intrusiveness or severity of treatment; (7) the patient's ability to cooperate and assist with post-treatment therapy; and (8) the wishes of family and friends, if those wishes would have influenced the patient. Ingram, 102 Wn.2d at 840.
When a patient's representative cannot in good faith ascertain whether the patient, if competent, would have consented to treatment, the representative must determine that the treatment is in the patient's best interests. RCW 7.70.060(1)(c). Factors that the representative should consider include (1) the patient's present level of physical, sensory, emotional, and cognitive functioning; (2) the various treatment options and the risks, side effects, and benefits of each of the options; (3) the life expectancy and prognosis for recovery with and without treatment; (4) the degree of physical pain resulting from the medical condition, treatment, or termination of treatment; and (5) the degree of dependency and loss of dignity resulting from the medical condition and treatment. In re Guardianship of Grant, 109 Wn.2d 545, 568, 747 P.2d 445 (1987), amended, 757 P.2d 534 (1988). Any of the incapacitated person's family members, guardian, physicians, or hospital may petition for court intervention to challenge the...
