Curran rules 'living will' not enough in some cases

October 03, 1990|By Frank D. Roylance | Frank D. Roylance,Evening Sun Staff

If you would rather die than be kept alive by feeding tube while in a permanently unconscious state, Maryland's attorney general says you can't rely on a "living will" to make sure your wishes are carried out.

You're going to need another document, called a "durable power of attorney for health care."

In a recent 25-page opinion, Attorney General J. Joseph Curran said Marylanders can use a living will to state their desire to end life-sustaining medical treatment, food and water if they are terminally ill.

But, if they are not terminally ill, but merely in a permanent state of unconsciousness or coma, Marylanders may find themselves stuck with their fate unless they have carefully designated someone else to make medical decisions for them, including the decision to withhold food and water.

"A living will is not an authorization for anyone else to make decisions in your behalf," Curran explained. "Instead, it embodies your own decision regarding the use of life-sustaining treatment when death is imminent."

But it "is limited to that type of situation," he said.

If death is not imminent, he said, no one -- not even close family members -- can make such decisions for you unless you have clearly and explicitly given them such power.

The legal document for doing that, Curran said, is called a "durable power of attorney for health care."

Forms for granting such power, devised by the Maryland State Bar Association, are available by writing to the Office of the Attorney General, Opinions and Advice, 200 St. Paul St., Baltimore, Md. 21202.

Curran issued his opinion in response to inquiries from Del. Joan B. Pitkin, D-Prince George's, and Rosalie S. Abrams, director of the state Office on Aging.

Pitkin and Abrams had asked Curran's opinion on the impact in Maryland of the U.S. Supreme Court's decision in the Nancy Cruzan case.

In that decision, the high court upheld a Missouri Supreme Court decision refusing a request by the family of Nancy Cruzan to stop the administration of food and water to their permanently comatose daughter.

Curran told Pitkin and Abrams that the Cruzan decision "does not require any change" in an opinion he issued in 1988 outlining Marylanders' "right to die."

"In fact," he said, "Cruzan strengthens several of ou conclusions."

Curran's 1988 opinion said it is up to the patient and the patient's family to cut off feeding tubes for terminally ill and permanently unconscious people.

The opinion gave explicit advice for anyone writing a legal document -- called a living will -- to express their desire to have a feeding tube or respirator removed if he or she becomes terminally ill.

For those patients who are in a permanent vegetative state, the attorney general recommended that families seek Circuit Court approval before removing a feeding tube or respirator.

The problem then is to convince the court of your wishes.

In the Cruzan decision, the Supreme Court found that the Missouri court was correct in requiring "clear and convincing evidence" that Cruzan, 32, would have wanted her food and water withdrawn rather than live on in her permanent vegetative state.

The Missouri Court could not find such proof. Cruzan had not left a living will or a durable power of attorney, although her parents said they were certain she would have preferred to die rather than live in a coma.

The family had been able only to point to a "somewhat serious conversation with a housemate friend that if she were sick or injured, she would not wish to continue her life unless she could live at least halfway normally."

Maryland courts, too, Curran said, are likely to require "clear and convincing evidence" that a permanently unconscious person would have wanted life-sustaining food and water cut off.

To be "clear and convincing," Curran said in his opinion, your instructions must be more than "an offhand remark."

They must show that "a mature person has thought about the issue of life-sustaining treatment and has expressed his or her desires forcefully and without wavering," he said.

The best, and legally the most reliable way to convince a court that you do not want to be kept alive indefinitely by feeding tubes, Curran said, is to grant the authority for such life-and-death health care decisions in advance to someone you trust in a "durable power of attorney for health care."

The document should also clearly outline the circumstances under which life-sustaining treatment is to be used or foregone, Curran said.

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