Does an Assisted Suicide Provision Belong in an Estate Plan?

The End of Life Option Act, California Health & Safety Code sections 443 et seq. (“EOLA”) sets forth extremely rigorous standards for a person to elect assisted suicide. EOLA appropriately requires multiple communications from the individual himself as well as his physicians. No one can make the election on behalf of anyone else. These safeguards provide essential protections for extremely vulnerable people. But as an estate planner, what do you do when a client emphatically wants his health care directive to reflect an election of assisted suicide?

Such decisions are nothing new to the estate planning arena. Many clients have watched loved ones suffer slow and agonizing deaths. They neither want that for themselves, nor to put their loved ones through the ordeal. For some of these people, it is not enough for their estate plan to say “don’t take extreme measures to keep me alive.” They want it to say, “be compassionate; help me die.” A few go so far as to develop their own informal assisted suicide plan.

Before EOLA, if a client told his/her estate planner that he/she had worked out a plan with a friend or family member to assist him/her when the time came, the only option was to tell the client that assisted suicide was illegal and that it could not be included in a health care directive. With the advent of EOLA, has this fundamental advice changed? Not really.

Right or wrong, there is no place for attorneys in the EOLA framework. The EOLA election requires findings by doctors and written statements by the individual at the time of the election. EOLA expressly states that an Advance Health Care Directive does not qualify as an appropriate documentation of the election:

“443.2. (a) An individual who is an adult with the capacity to make medical decisions and with a terminal disease may make a request to receive a prescription for an aid-in-dying drug if all of the following conditions are satisfied:
(1) The individual’s attending physician has diagnosed the individual with a terminal disease.
(2) The individual has voluntarily expressed the wish to receive a prescription for an aid-in-dying drug.
(3) The individual is a resident of California and is able to establish residency …
(4) The individual documents his or her request pursuant to the requirements set forth in Section 443.3.
(5) The individual has the physical and mental ability to self-administer the aid-in-dying drug.
…
(c) A request for a prescription for an aid-in-dying drug under this part shall be made solely and directly by the individual diagnosed with the terminal disease and shall not be made on behalf of the patient, including, but not limited to, through a power of attorney, an advance health care directive, a conservator, health care agent, surrogate, or any other legally recognized health care decisionmaker.” (Emphasis added).

Despite the fact that assisted suicide is legal in California, an attorney cannot document a client’s intended EOLA election in an Advance Health Care Directive – at least not in a way that is enforceable. This limitation on health care directives will come as a surprise to estate planning clients who want to document their intent to make an EOLA election.

What is a well-intentioned attorney to do? Just because an assisted suicide clause is unenforceable doesn’t mean there isn’t value to including language about EOLA in a health care directive.
The primary purpose of a health care directive is to ensure that the agent knows and understands the individual’s health decisions. Knowing that an individual wants to avail himself of EOLA to the fullest extent possible is powerful knowledge for an agent to have – even if the agent cannot actually make the election for the individual. It can inform the healthcare agent about what to do in other situations – like how important other interventions (feeding tubes, pain medications, etc.) are to the individual.

Hopefully, the drafting of an Advance Healthcare Directive leads to a frank conversation between the individual and the chosen agent. If a potential agent would not be willing to make the EOLA election on behalf of the individual, that refusal may change the individual’s mind about who the proper agent should be. And that is a good thing.

Furthermore, EOLA is in its infancy. EOLA will evolve over time as people avail themselves of it. Someday an agent may be able to make the election on behalf of the individual if appropriate precautionary standards are met. Some version of the following might be appropriate to include in an Advance Health Care Directive:

I understand that under current California law, I can elect assisted suicide under specific circumstances, but my health care agent cannot make an election for assisted suicide on my behalf. I support the terminally ill having a choice of assisted suicide, and intend to incorporate the legal standards for electing assisted suicide into this health care directive. If I no longer have capacity, to the fullest extent possible, I authorize my agent to exercise on my behalf my right to elect assisted suicide under the then-operative California law.

Worst case scenario: this provision is legally meaningless and innocuous surplussage. Best case: the language could serve to authorize the agent to act according to the individual’s wishes –– but only within the legal standards that exist at the time. Either way, the language informs the agent of the individual’s true end of life choices.

EOLA’s stringent protections exist for good reason. Obviously, placing the power to end someone’s life in someone else’s hands should never be done lightly. But that does not mean that an attorney cannot have a role in documenting a client’s true, well-reasoned wishes to end his/her own suffering.

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