Legal Issues

Advanced directives, death certificates, wills

Legal Issues Before Death

• Advanced Directives: Instructions that one would prepare in case he/she becomes incapacitated or unable to join in making decisions.

• Examples include:– Living wills– Durable powers of attorney– Five Wishes

Living Wills• Idea conceived in the early 1970’s.

Originally had no legal power.– Primary concern is to withold or withdraw

treatments that merely prolong dying when one is in an incurable or irreversible condition with no reasonable expectations of recovery.

– Also, ask for sufficient pain relief, even if it hastens death.

– Now legal in all 50 states.– May be repudiated at any time by the patient.– If a doctor ignores living will they can be sued

for malpractice.

Durable Powers of Attorney

• Alternative approach that authorizes an individual to make health decisions for another.

• Designed to avoid interpretation issues with living wills.

• First legalized in CA in 1985. Currently legal in TX.

Five Wishes

• Designed to clearly and succinctly address issues and wishes surrounding death. – Who do you want making decisions?– The kind of health treatment you do or don’t

want.– How comfortable you want to be?– How do you want people to treat you?– What do you want your loved ones to know?– Can download form at

www.agingwithdignity.org – Currently not legal in Texas, but it is in most

other states.

Legal Issues at Death

• Death Certificates: need to provide permission for disposition of the body. Four classifications.– Natural– Accident– Suicide– Homicide

Coroners and Medical Examiners

• Unless death occurs naturally under the care of a physician, it falls under the jurisdiction of a coroner or medical examiner.

• Coroners and medical examiners are empowered to take possession of the body.

• Coroners are elected, medical examiners are appointed and must have an M.D.

Determination of Death

• Harvard Medical School developed the following criteria:– Unreceptivity and unresponsivity – No movements or breathing– No reflexes– Flat EEG– All the above tests should be repeated 24 hours

later with no change.– Not valid in cases of hypothermia or the

presence of CNS depressants.

Legal Issues After Death

• Organ Donation: Great step forward came in the 1980’s with the development of cyclosporine (immunosuppressant).– Living people can donate replaceable materials

(e.g., blood) or one of a twinned organ.– Presumed consent used to exist, but must now

be explicit in most states.– Minority groups donate organs less frequently

than other groups, but sadly make up a disproportionate part of the waiting list.

More Issues• Body Donation

– Not much need. Contact a medical or dental school if interested.

• Disposition of the Body: Aside from recording vital statistics and some basic health regulations, disposition is governed by social custom and good taste.– Embalming is not legally required unless

interstate travel by common carrier is occurring.

– Concrete grave liners are typically not required by law, but are the decision of individual cemeteries.

Disposition of Property

• Probate– Literally means proving the legitimacy of the

will.

• Those who die without a will are known as intestate. Spouse and children are generally given first consideration.

• Trusts transfer property to a trustee who is legally bound to use this property for the benefit of the beneficiary. Helps to avoid inheritance taxes.