Practicing medicine, fiduciary trust privacy, and public moral interloping after Cruzan.

MICHAEL A. RIE

ABSTRACT. The Supreme Court decision in Cruzan reaffirmed the power of the states to set procedural standards for due process regarding the individual's exercise of his liberty interest. As a result, to effect an autonomous decision to refuse treatment when one becomes incompetent requires an affirmative articulation by means of an advance directive. This article argues against simplified advance directives in that they fail to enhance individual liberty and responsibility and fail to provide physicians with needed information. A model protective advance directive is advocated with direction to terminate personal and health insurance payments for health care that is not desired by the patient. Key Words: advanced directive, affirmative articulation, Cruzan, fiduciary trust

Our post modern society lacks a cohesive moral framework in law to accommodate conflicting individual interpretations of the good life and good death (Engelhardt, 1986). The Cruzan opinion is a wakeup call to all citizens and their physicians from an 'original intent' judicial majority underscoring the Judeo Christian foundations of the common law (Battin, 1982; Rie, 1989). These religious proscriptions against suicide were incorporated by the common laws of England and the United States. Though suicide had been largely decriminalized in the United States (Englehardt, 1982), the Missouri Supreme court, Chief Justice Rehnquist and Justice Scalia conclude that the state has the power to define the limits of individual privacy if the state has expressed a public policy strongly favoring the preservation of human life. Those who interpret the constitution as a precise text of eighteenth century authors point out that privacy rights are not mentioned. The concept of a right to personal privacy is a recent event developed in Griswold vs Connecticut in which Justice Douglas found a marital right to privacy implicit but unstated in the Constitution Michael A. Rie, M.D., F.A.C.P., Director, Intensivist Service, Departments of Anesthesiology and Surgery, University of Kentucky Chandler Medical Center, Lexington, KY, 40536-0084, U.S.A. The Journal of Medicine and Philosophy 17:647-664,1992. © 1992 Kluwer Academic Publishers. Printed in the Netherlands.

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PRACTICING MEDICINE, FIDUCIARY TRUST PRIVACY, AND PUBLIC MORAL INTERLOPING AFTER CRUZAN

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Michael A. Rie

RESPECTING AUTONOMY IN A WORLD OF PUBLIC MORAL INTERLOPERS For the physician good medical practice begins and ends (Rie, 1991) with the creation and maintenance of a fiduciary trust relationship with the patient. This is the case in all jurisdictions. As physicians we have become sensitized to the issue that strict documentation of autonomy by the patient is necessary in deci-


and went on to state that "specific guarantees in the Bill of Rights have penumbras formed by emanation... that give them life and substance". In the subsequent case of Eisenstadt vs Baird, again concerning state intrusion into personal choices of procreation and contraception, Justice Brennan writing for a 6-1 majority stated: "It is the right of the individual married or single, to be free from unwarranted governmental intrusions into matters so fundamentally affecting a person as to whether to bear or begat a child". These 'created rights' of privacy became the legal foundations in Roe vs Wade as well as the seminal decision In re Quinlan. Between Quinlan and the judicial proceedings in Cruzan, Americans and their physicians became aware of the problem of external criticism of an individual's decision to hasten death by requesting withdrawal of modern technologic care that prolonged the dying process while raising the spector of physician assisted suicide. In Cruzan the Supreme Court has reaffirmed federalism and the power of states (Wachtler, 1991) to set procedural standards for due process regarding an individual's exercise of his liberty interest. This essay accepts the judicial reality that effecting autonomous decisions to refuse treatment when one becomes incompetent requires an affirmative articulation via an advance directive if a citizen wishes to be permitted by the state to exercise his common law liberty interest to be left alone when medical care is no longer desired. The lack of a fundamental constitutional right to privacy and judicial deference to the individual states in Cruzan has had a decidedly positive effect. Those states like Massachusetts that embrace substituted judgment standards are unaffected while the principle of clear and convincing evidentiary standards in Missouri and New York are permitted to stand. Judicial deference has had the additional positive legislative action (in theory) by Congressional passage of the Patient Self Determination Act (PSDA) within 6 months of Cruzan (McCloskey, 1991).

Practicing Medicine after Cruzan

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sions regarding withdrawal of technologic life support as there is a large segment of society that regards the exercise of such decisions by a physician as assisted suicide. There is a heightened defensiveness among physicians that results in prolongation of medical care when it may not be desired by the patient as the physician may fear external criticism. Though this be an every day problem well known by the public and health care professionals, several surveys show that only a small percentage of Americans create advance directives that delegate the decision making authority to another person should the patient become incompetent in the persistent vegetative state (Baron, 1991). The positive effect of Cruzan has been to heighten public awareness that the exercise of a citizen's liberty in these decisions legally requires an explicit antecedent articulation by the patient in writing. The PSDA is a legislative response to Cruzan in which Congress mandated that federally reimbursed hospitals had an affirmative duty to inform patients of state laws regarding the citizen's right to create and use written advance directives. This is a requirement of hospitals as one basis for receiving federal funds for the care of patients. A general corollary to this principal should be that if a patient clearly sets forth the circumstances for withdrawal of previously desired and customary medical care, then that patient is entitled under common law to mandate that further care be stopped even if it hastens death. Should providers fail to heed the request after proper notice by the patient or his/her proxy, then one could infer that Congress intended for Medicare recipients to have the option of asking the federal government to terminate reimbursement to providers for ongoing treatment that was now declared by the patient or his surrogate to constitute the crime of battery. The articulation of battery would lend clarity to those who questioned the patient's articulation and would be consistent with the old tradition in common law that medical care when not desired constitutes a nonconsensual criminal invasion of a person (Rie, Engelhardt, 1989). This essay will argue that the Cruzan opinion has been a tremendously important and positive event for individual liberty in a country that does not grant a constitutional right to privacy within the strict definition of the constitution. While many have been surprised and chagrined by the opinion (Annas, 1991), this opinion was nothing more than could be expected of a strict interpretation Supreme Court that celebrates the Federalist

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Papers. This opinion has been helpful to the individual liberty of those who do not hold the Judeo Christian penchants of the common law as well as physicians who care for such individuals because it has established individual responsibility for articulating the morality that one holds in preserving individual liberty. If one lives in Missouri or New York State in 1992, then the exercise of liberty in health care requires that one give careful thought to these matters long before one is incompetent, sick or dying. While the possibility exists that one might change one's mind, numerous public surveys show repeatedly that nearly 85% of the American public would not want to be sustained by gastrointestinal feedings in the persistent vegetative state (Baron, 1991). To bring clarity and definition to the exercise of liberty in a society where many individual and institutional moral interlopers would like to obstruct the exercise of personal morality in health care decisions, it would appear that the best solution would be to make these rights clearly those of the individual and to have that individual clearly understand that he or she should delegate to their surrogate the full force of legal enforcement visited upon those extraneous interlopers to the patient doctor relationship that sought to obstruct the patient's liberty. We are then left with the realization that the exercise of liberty in health care under Cruzan requires that individual states permit the existence of advance directives to be effected when a patient becomes incompetent. Cruzan resulted in the swift passage in Massachusetts of a comprehensive durable power of attorney for health care statute that otherwise would not have been enacted. Cruzan galvanized the people in Massachusetts and elsewhere, to realize that their liberty was at risk unless they took steps legislatively and personally to take responsibility for the circumstances surrounding the conclusion of their lives in a world of moral interlopers. This was an essential political ingredient that was necessary to effectuate the legislation in Massachusetts and other states where there was strong political opposition to this type of legislation prior to Cruzan. In so doing, there has been extremely purposeful dialogue across institutions of society that are often at odds with each other on this issue. In Massachusetts, the passage of the durable power statute came about in part through the unique political alliance of the American Association of Retired Persons, the Massachusetts Medical Society, the Massachusetts Bar Association, the Nursing Profession with ultimate acceptance



of the legislation by the Catholic Archdiocese of Boston. Only one year before such political consensus would have been impossible. It is apparent that by suggesting that liberty was not to be taken lightly, but must be cherished and asserted vigorously by citizens that the Supreme Court of the United States caused the populus to understand fully the importance of cherishing their right, and articulating with clarity their interest in its maintenance. It is central to the Cruzan opinion that Chief Justice Rehnquist found that had there been a clear and convincing statement by Nancy Cruzan that she wanted withholding of gastrostomy feedings then that would have been embraced within the liberty interests of the common law. Given this ruling it is unlikely that states will continue to be able to write or amend natural death statutes to include limitations on this form of choice within the construct of an advance directive. Though the evidentiary standards will exist, they can be met by the use of what will be described here as a 'fully enforceable protective advance directive'. Advance directive legislation now exists in almost all the states, and the Patient Self Determination Act requires all Medicare reimbursed hospitals and institutions to appraise patients of their rights to self determination under the applicable statutes in their states. This should result in more patients writing enforceable advance directives with purposeful clinical content. Indeed in recent years there has been an outpouring of research and interest in refining the medical directive (Emanuel, 1989) and the advance directive so that it would have more useful content for physicians dealing with patients in the clinical setting. Physicians who are faced with an advance directive that clearly specifies the surrogate and clearly specifies the delegation of authority to the surrogate for particular items or general areas of authority, and as well circumscribes the limits at which the physician's behavior will be considered to constitute a battery upon the patient, are likely to accede to the directive. Characteristically physicians are afraid that there will be complaints about the withdrawal of life support from others than the surrogate. The beauty of surrogate status, which is sanctioned in law, is that it assures that interlopers have no legal standing when patients become incompetent. If the patient's directive also creates the definition of medical battery and financial sanctions to be applied in the face of medical battery, then it is quite likely that physicians will take these directives seriously and will be likely to act on

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them as there will now be a risk to the physician for not carrying out the directives whereas historically there was no such risk but there was risk of approbation from interlopers. As clearly stated by Justice Rehnquist, the right to refuse treatment is a corollary to the general right to consent to treatment and not to have treatments forced upon one against one's will. Cruzan upholds this general common law principle. To ensure that one's rights are respected one would hope that patients have the general right to find mechanisms of enforcement of their wishes that will not require appeals to the courts or other cumbersome administrative procedures that will not result in the desired clinical actions within a reasonable time frame. Patients should be allowed the right (via their advance directive) to signal those circumstances under which they no longer wish to pay health care institutions or providers for care that is no longer desired. By granting patients the capacity to have their health insurers stop payments and even retroactively deny payments for care that was given against their will, it will allow providers to test the full moral capacity of their beliefs should they find themselves morally constrained not to honor the patient's wishes. Described in Appendix A is a protective model advance directive with enforcement provisions and written for the specific needs of Missouri and New York State residents. It is offered as a way to advance patient rights within the clear and convincing standard guidelines set up by Missouri and New York and upheld by the United States Supreme Court. Though this be a lengthy document, its creation requires a high level of communication between the subject writing the document, close family members or other chosen surrogates, with subsequent transmission of this document to health care providers and institutions prior to the delivery of health services. Such communication breaks the usual Judeo Christian taboos relating to the circumstances of individual death and brings out beliefs of possible surrogates that might not be in synchrony with the writer of an advance directive. As the document makes demands upon providers which form an antecedent contingency for entering into a health care relationship, it is a preemptive advance directive that clearly sets the nature and the tenor of discussion on the table. This is a healthy event in medicine as physicians and patients in our culture are generally reticent to discuss matters of death and the need for such discussion is great under Cruzan. The construction of such an



advance directive in concert with Cruzan is likely to advance further the openness of discussion and candor that is required between family members and the subject, and the physician and other care givers in an attempt to improve the overall communications surrounding cultural taboos, personal uncertainties and prevarication of subjects before, during and after the development of serious illness. If there is anything that drives physicians to distraction and despair about this subject, it is prevarication or uncertain wishes being expressed on behalf of the patient. For practicing physicians such a document is helpful because it defines (in terms developed by the patient) circumstances which may require termination of care, even when a physician may not consider the patient to be terminaUy ill, when the circumstances of life are unbearable for the subject and the use of technology is intrusive upon the subject's quality of life and constitutes a desecration of personhood. In clinical practice such events are not uncommon. Individuals may have achieved a very low level of life in an intensive care unit with full ventilatory and circulatory support in which survival is precedented in the medical literature but the circumstances are those in which the subject or the surrogate no longer wishes to continue to receive care. In such circumstances patient's wishes are not heeded and medical paternalism reigns supreme in almost all circumstances. The benefit of the advance directive recommended in this essay is that both legal and economic sanctions can then be brought to bear against the institution and the individual providers that require a certain risk taking on the part of those providers to continue to provide services to which they would otherwise be remunerated. If there are real moral views that the hospital or physicians would hold that would impede the exercise of the liberty interests of the patient, then such institutions by definition would have an affirmative obligation to seek other kinds of care of other health care institutions and the duty would be an affirmative one upon the institution and not upon the patient as is usually the case in these matters. There are many who will object to a complex advance directive as advocated in this essay. Indeed the approach taken in Massachusetts and elsewhere is to try and develop extremely simplified documents which require very simple checkoffs or determinations by the subject. This essay argues against the simplified advance directives because the physician usually

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requires much more information to be confident that the patient's views concerning complex ethical issues in various health care scenarios have been detailed. Though the medical directive advocated by Emanuel and Emanuel is complex, it discloses a range of views that people have in our society that are not homogenous and predictable even if they wish to have an advance directive to assure respect for their personhood as death approaches. Buttressing individual liberty in a society that does not permit privacy requires the clear articulation of that liberty. For those who practice medicine, the clearer the message being articulated from the patient the easier to understand the intents of the patient and to respect them without fears of innuendo, moral interloping by outsiders or even worse, moral interloping by family members who did not share the patient's values or have agendas of a nonmoral nature affecting the care of the patient. These protective advance directives allow for quality of life decisions to be made and for the greatest latitude to be extended to the liberty interests under the common law. If patients want to decline further invasive therapy in the exercise of their liberty interests when death is not certain but life is intolerable for the subject, then the unconsenting physician will need to go to court to preclude criminal charges and financial sanctions. The court would then need to rule that the state's interest in the preservation of life is so strong that the clear and convincing standard for articulating the liberty interest not withstanding, the state will override that liberty interest and establish judicially mandated state health care requirements for the care of individuals who have become the property of the state. Were we to arrive at such circumstances, it is apparent that the Supreme Court of the United States would be forced to recognize that there is not an economic right but an economic imperative for patients to be the property of the state and for the state to disperse public funds to the care of individuals who's liberty interests had been clearly overridden by the state's interest in the preservation of life. Though this is a hard circumstance to contemplate, the Cruzan court came as close as it could to setting the standard for preservation of life by state mandate in a case where the patient was already under the care of the state. Nancy Cruzan was a patient in a state hospital. Her health care was being paid for by the state of Missouri and no attention was paid to whether she had been deprived of a fiduciary trust relationship with an individual



physician as opposed to agents of the state. Under the circumstances in Cruzan we must assume that individuals who reside in state hospitals in Missouri have less access to the exercise of the liberty interests than those who might have resided in a state hospital in Massachusetts where the substituted judgement doctrine prevails. This raises troubling questions for how Medicare and Medicaid funds are used by state mandates with subordination of federal legislative mandates directing the use of those funds. In such circumstances more federal funds would be dispersed to physicians (but not DRG reimbursed hospitals) in Missouri than in Massachusetts creating unequal economic entitlements to federal funds in different states. One should not expect that either the circumstances surrounding one's demise or the geography of one's demise will be predictable. Therefore, even individuals who live in states that have less rigid standards than that which is dear and convincing evidence, should consider writing advance directives that allow for all contingencies that would relate to travel or changes in geography if one wanted to have some sense of assurance about these matters in the United States. In conclusion, the Cruzan opinion will lead to the development of more specific, meaningful and contentfull advance directives that are now almost universally acknowledged in the United States as well as acknowledged in the Patient Self Determination Act. Specific advance directives and thoughtful discussion between the subject and surrogates who would become the decision makers when the patient becomes incompetent is absolutely essential. Physicians need to have confidence in the meaning and individual nuances of care involving patients. Better advance directives with more forethought and careful discussion about the subject of death which is often a taboo for the patient, the family and the physician until matters are to far gone, will be a major cultural health care challenge for the American people. Enhancing individual responsibility enhances individual liberty. Though this may be a culturally and emotionally charged and painful subject for many, the advance directives that will exist after Cruzan will make for a better practice of medicine and a more responsible society of humans in which to practice medicine.

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Michael A. Rie

DURABLE POWER OF ATTORNEY FOR HEALTH CARE DECISIONS 1. DEFINITIONS

1.1 "ATTORNEY-IN-FACT" means 1.2 "Incapacity to Make Medical Treatment Decisions" means the inability to understand the consequences of making Medical Treatment decisions and to communicate those decisions. 1.3 "Irreversible Mental or Physical Disability" includes, but is not limited to: permanent unconsciousness (i.e., a persistent vegetative state or irreversible coma, in which purposeful interaction with the environment, awareness of pain or pleasure, and any cognitive awareness are permanently absent), stroke, Alzheimer's or other dementia, Lou Gehrig's disease, locked-in syndrome and brain damage due to head trauma. 1.4 "Medical Treatment" means any care, treatment, service, or procedure to maintain, diagnose or treat my mental or physical condition, including but not limited to: antibiotics, artificially supplied nutrition and hydration, blood transfusions, chemotherapy, cardiac resuscitation, cardioversion, dialysis, medication, respiratory support (including tracheostomies), surgery (including amputation of gangrenous Limbs). 1.5 "PRINCIPAL" means 2. GENERAL APPOINTMENT

I,

("Principal"), hereby appoint my ("ATTORNEY-IN-FACT") as my ATTORNEY-IN-FACT to express and implement, to the full extent permitted by law, my specific and general instructions and desires concerning all Medical Treatment decisions in the event I am unable (even temporarily) to do so myself. I delegate this authority because I trust my ATTORNEY-IN-FACT to make the decisions I would have made if I had been able to choose, and to


APPENDIX


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3. NOMINATION OF COURT-APPOINTED FIDUCIARY

If any type of court-appointed fiduciary (e.g., committee of the person, conservator, or guardian) must be appointed to make decisions concerning my health care in the event I am unable to do so, I hereby nominate my ATTORNEY-IN-FACT to serve in that position. 4. STATEMENT OF DESIRES

4.1 General Statement. If I should have an Irreversible Mental or Physical Disability from which my attending physician (or any other physician(s) my ATTORNEY-IN-FACT selects) determines that there is 'no reasonable expectation of my significant improvement' (as defined by my ATTORNEY-IN-FACT), I authorize my ATTORNEY-IN-FACT to direct the individuals or institutions responsible for my care to withhold or withdraw Medical Treatment that primarily prolongs my dying and is not necessary for comfort care as described in paragraph 4.2. Because I fear having an Irreversible Mental or Physical Disability more than death itself, I do not want Medical Treatment that prolongs my life (except as described in paragraphs 4.2 and 4.3) if I have such disability, even if it is inexpensive, easy to administer, and may bring me back to my full mental and physical capabilities for a certain period, but will not cure the Irreversible Mental or Physical Disability from which I suffer. If my ATTORNEY-IN-FACT is unable to implement this document, I direct that this document nevertheless be honored by all those concerned with my care to the full extent permitted by law. I also direct that my attending physician make a copy of this document part of my medical record as soon as he/she becomes aware of it. 4.2 Comfort Care. I direct that I be given any Medical Treatment to keep me comfortable and relieve pain, even if it is addictive and/or shortens my life. Unless my ATTORNEY-IN-FACT so directs, however, I do not want any Medical Treatment, even comfort care, and particularly prolonged intravenous or enteric


do so in timely fashion. If my ATTORNEY-IN-FACT cannot determine what my wishes would have been, I direct that he/she determines my best interest.

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4.3 Medical Treatment Prior to a Determination of Irreversible Mental or Physical Disability. I do want Medical Treatment prior to it being determined by my attending physician (or any other physician(s) my ATTORNEY-IN-FACT selects) that I have no expectation of significant improvement in accordance with paragraph 4.1. In the event that such determination is not made within a period of a week from the time I become incapable of making Medical Treatment decisions and a physician my ATTORNEY-IN-FACT selects examines me, I want Medical Treatment not necessary for my comfort withheld or withdrawn, subject to my ATTORNEY-INFACT's discretion to lengthen the period. 4.4 Place of care. I do not want to be transferred to a hospital from a nursing home (or other location) for the purpose of receiving Medical Treatment in contravention of this document or my ATTORNEY-IN-FACT's instructions. 5. SCOPE OF ATTORNEY-IN-FACT'S POWERS

I direct that my ATTORNEY-IN-FACT have the broadest possible scope of authority to make any decisions concerning my health care. These powers include but are not limited to: (a) providing, withholding or withdrawing consent to specific Medical Treatment (including those that primarily prolong my dying); (b) granting releases to medical personnel; (c) employing and discharging medical personnel; (d) determining, based on consultation with my attending physician (or any other mental health professional(s) my ATTORNEY-IN-FACT selects), my capacity to make health care decisions; (e) discussing my medical condition and prognosis with physicians; (f) expending or withholding my funds necessary to implement treatment or to enforce the instructions in this document; (g) interpreting any ambiguities in this document; (h) overriding any provisions in this document; (i) making health care decisions on my behalf, based on the ATTORNEY-IN-FACT's good faith determination of my wishes had I been able to choose for myself, or if unable to determine them, to make the decision which the ATTORNEY-IN-FACT determines to be in my best interest; (j) making decisions concern-


hydration and nutrition, if it prolongs my life when I have an Irreversible Mental or Physical Disability.


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6. PROPERTY ISSUES

I hereby authorize and direct whoever shall be responsible for my estate or have power over any property of mine to reimburse my ATTORNEY-IN-FACT for any costs (including legal fees) reasonably incurred in or as a result of acting pursuant to this document. I also prohibit whoever shall have power over any of my property from disbursing funds for my health care not authorized by my ATTORNEY-IN-FACT. 7. EFFECTIVENESS

I intend this document to become effective upon my incapacity to make Medical Treatment decisions (as determined by my treating physician or any other mental health professional(s) my ATTORNEY-IN-FACT selects). I intend that the authority conferred on my ATTORNEY-IN-FACT is exercisable notwithstanding my disability or incompetence. This document will remain in effect unless I willfully and voluntarily amend or revoke it. By 'revocation', I mean written or oral revocation in the presence of two witnesses of sound mind over the age of 18. I direct my attending physician to enter any revocation in my medical record as soon as he/she becomes aware of such revocation. 8. WAIVER OF LIABILITY/ENFORCEMENT OF DOCUMENT

8.1 Waiver. I hereby release from liability, indemnify, and hold harmless my ATTORNEY-IN-FACT for any action taken in good faith pursuant to this document. I also hereby indemnify, hold harmless and release from liability any physicians, hospital administrators or any other individuals who, absent actual knowledge of my revocation of this document, rely in good faith on this document or my ATTORNEY-IN-FACT's instructions.


ing donations of my organs; (k) communicating any treatment decisions I made, either orally or in writing; (1) having primary visitation rights; and (m) seeking judicial intervention, if necessary, to implement a treatment plan, to request civil damages (described further in paragraph 8) for not honoring the instructions as expressed by me, this document, or my ATTORNEY-INFACT.

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Michael A. Rie

9. INTERPRETIVE RULES

I direct my ATTORNEY-IN-FACT to use my directions as set forth in this document as a guide for making medical decisions on my behalf, but authorize him to override them if he determines such action to be more consistent with my preferences as otherwise known to him or in my best interest. My ATTORNEY-IN-FACT's decisions are to be final, binding, and conclusive, and should not be questioned absent a showing based strictly on the most clear and convincing evidence that he has deliberately acted in violation of my directions. The decisions of my ATTORNEY-IN-FACT shall control notwithstanding any decisions by any other individual(s), including but not limited to . Any ambiguities in this document should be interpreted by my ATTORNEY-IN-FACT to confer the broadest powers on him/her to make health care decisions to the full extent permitted by law. I waive the attorney-client privilege or physician-patient privilege if discussions between me and my attorneys or physicians can help interpret any ambiguities in this document. I intend this document to be a clear and convincing expression of my desire to control my Medical Treatment to the full extent permitted by law in the state of and any other jurisdiction in which I may be treated. 10. SEVERABILITY

If for any reason, any provision of this document is determined not to be legally binding, I ask that it be deemed severable and that all other provisions be deemed binding to the greatest extent possible.


8.2 Enforcement. I consider any Medical Treatment in violation of this document or my ATTORNEY-IN-FACT's instructions to be a nonconsensual touching and Medical Treatment without my informed consent. I therefore direct my ATTORNEY-IN-FACT (or any other person(s) legally authorized to do so if my ATTORNEYIN-FACT is unable to do so) to take any legal measures to protect these rights, including but not limited to seeking: declaratory or injunctive relief, compensatory and punitive damages, attorneys fees, costs and guardian ad litem fees.


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The paragraph headings are inserted herein only as a matter of convenience and in no way define, modify or restrict the scope or intent of any provision herein. 12. DISTRIBUTION OF DOCUMENT

The following people will be given a copy of this document, all copies of which shall be deemed originals: (ATTORNEY-EM-FACT) Address (Attorney) Address (Attorney) Address 13. ACCEPTANCE BY ATTORNEY-IN-FACT

As ATTORNEY-IN-FACT I, , understand that acceptance of this appointment means that if my father/mother/spouse, etc. becomes incapable of making Medical Treatment decisions for himself/herself, I have a duty to act in good faith and to implement any medical decisions he/she has communicated to me orally or in writing, to make medical decisions for him/her that I think he/she would have made for himself/herself if he/she had been able to choose, or if I cannot determine these decisions, to make the decisions which I consider to be in his/her best interest. I also understand that, before this document becomes effective, I must, pursuant to N.Y. Gen. Obi. Law § 5-1602, declare in writing that my father/mother/spouse has become incapable of making medical decisions of himself/herself. I am of sound mind, over 18 years of age, and am not attending physician.

Typed name of individual Address and Phone


11. PARAGRAPH HEADINGS

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Michael A. Rie

IN WITNESS WHEREOF, I declare that I am of sound mind, and fully capable of understanding the nature and consequences of executing this document, and I willfully and voluntarily have set my hand this day of , 19.

Typed name of individual Address and Phone WITNESS ACKNOWLEDGMENT

I declare that , who appears to me of sound mind and to understand the nature and consequences of executing this document, has voluntarily signed this document in my presence. I am of sound mind and over the age of 18 years. I am not the person appointed as ATTORNEY-IN-FACT and am not the attending physician of (Signature)

(Address)

(Signature)

(Address)

STATE OF NEW YORK )SS: COUNTY OF

)

On this day of , 19 , before me personally came , to me known to be the individual described in and who executed the foregoing instru-


SIGNATURE OF PRINCIPAL


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(Notary Public) On the day of , 19 , before me personally came , a subscribing witness to the foregoing instrument, with whom I am personally acquainted, who, being by me duly sworn, did depose and say that he/she resides at ; that he/she knows to be the individual described in and who executed the foregoing instrument; and that he/she, said subscribing witness, was present and saw execute the same; and that he/she, said witness, at the same time subscribed his/her name as witness thereto. (Notary Public) REFERENCES Annas G: 1991, The long dying of Nancy Cruzan', Law Medicine and Health Care, 19(1-2); 52-59. Baron CH: 1991, 'Why withdrawal of life support for PVS patients is not a family decision', Law and Health Care, 19 (1-2); 73-75. Battin M: 1982, Ethical Issues in Suicide, Prentice Hall, Englewood Cliffs, New Jersey. Eisenstadt vs Baird: 405 US 438 (1972). Emanuel L, Emanuel E: 1989, The medical directive: A new comprehensive advanced care document', JAMA 261 (22); 3288-3293. Engelhardt HT Jr, Malloy M: 1982, 'Suicide and assisting suicide: A critique of legal sanctions', Southwestern Law Journal, 36:1003-1037. Engelhardt HT Jr: 1986, The Foundations of Bioethics. Oxford University Press, New York. Griswold vs Connecticut: 381 US 479 (1965). McCloskey E: 1991, 'Between isolation and intrusion: The patient self determination acf, Law Medicine and Health Care, 19(1-2); 80-82. Quinlan: 70 NJ 10, 355 A 2nd 647, (cert.) denied sub nom Garger v New Jersey 429 US 922 97 set. 319,50 L ed 2d 289,1976). Rie MA, Engelhardt HT Jr: 1989, The financial enforcement of living wills:


ment, and he/she duly acknowledged to me and executed the same.

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of Clinical Anesthesia, 1(3); 222-227.

Rie MA: 1991, 'Helga Wanglie's ventilator: The limits of a wash', Hastings Center Report, 21(4); 23-35. Wachtler S: 1991, 'A judge's perspective: The New York rulings', Law Medicine and Health Care, 19(1-2); 60-62.


Putting teeth into natural death statutes', Advance Directives in Medicine, edited by Hackler C. Moseley R. Vawter D. Praeger Press, New York, pp. 85-92. Rie MA: 1989, 'A social responsibility to die? Freedom, aging and AIDS', Journal

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