Decades ago, when I started my practice as an estate-planning attorney, there were rumblings about how modern medicine was changing the way people died. For most of human existence death came quickly from an illness or injury about which physicians could do nothing. Now, advances in medical knowledge allow us to battle death, giving us more time with our loved ones. But this same gift often makes the dying process a long, slow struggle against an incurable disease or untreatable injury. Sometimes, after a long struggle with illness and with full knowledge that death is certain and the future holds nothing but suffering, a person will decide to voluntarily stop eating and drinking (“VSED”), which hastens the inevitable end.
Every modern medical advance to make our lives better brings with it new challenges and problems we must address.
Though in theory your right to make decisions about your body is sacrosanct, in practice conflicting concerns can make obtaining your goal difficult. This issue came into the nations eye in 2011, summarized in the New York Times, where a couple’s mutual decision to exercise VSED in New Mexico went from a private decision into a public affair that involved their retirement community, calls to 911, their local fire department and an attempted eviction.
The right to voluntarily stop eating and drinking is a personal decision and belongs completely to oneself. However, there are still potential legal and social roadblocks. In The Patient Self-Determination Act (PSDA), congress requires many organizations with whom an elderly or ill person comes into contact to give out information about your rights under your state law. However, it is up to you to exercise those rights. Objections to VSED have been raised on religious grounds as well as over concerns of abuse to elderly and ill persons who no longer are able to speak for themselves. (Some states have placed limits on consenting to VSED by a person’s agent or surrogate, see Florida’s “Starvation and Dehydration of Persons with Disabilities Prevention Act”)
Because this is a decision over which opinions do vary in potentially explosive (and litigious) ways, there are several issues to be considered by a person or the family of a person considering voluntarily stopping eating and drinking.
Competence: A competent adult has the right to decide to VSED, but when illness is advanced, competency can be difficult to determine. Pain medication and pain itself can bring a person in and out of being competent. I recently spent time with a terminally ill client in Montgomery County, Pennsylvania, who, because of her medication one day could not recognize her family, but on the next day was completely aware and cognizant. Most objections about VSED arise because people feel that the person considering VSED is not competent. Medical professionals or family members will want to feel comfortable that the person is making an informed and reasoned decision. Disagreement can often mean litigation and the need for legal representation to enforce the person’s right to choose VSED. Involving a psychiatrist in the decision making process might be a wise choice, as the doctor can confirm that the decision is being made by a competent person. This might seem like an invasion of your private decision, but if the doctor’s opinion will help your family feel more comfortable, and avoid potential litigation, it is a option worth taking.
Medical Directive: If you believe VSED is a route that you want to pursue, it is best to communicate this decision to a trusted person with clear instructions and arm them with a medical power of attorney (these go by many names including health care directive, advanced directive or living will). This person is often called the Surrogate and must have a personality able to stand up to potential passionate objections from family members who disagree with your decision.
Communication With Your Family: If you are considering VSED, do not be unrealistic about your family’s potential response. Though legally VSED is not assisted suicide, some people believe VSED and assisted suicide are the same. This is an understandable position. However, there is a difference between helping a loved one receive a lethal dose of medicine and recognizing that a loved one who is terminally ill has the right to decide whether or not to continue eating and drinking. Communication with your family is important, as your decisions may have religious and psychological effects on your family that you might not fathom. Expect protest. It is wise to consider signing a written declaration of your intention to VSED. Depending on your family members, you may or may not want to include the reasons for your decision. It also might be wise to meet personally with family members to explain your plan.
Communication with Your Medical Professional: Doctors are bound by the law to respect your wishes, but keep in mind that each doctor is a human with their own life experiences and beliefs. To authorize VSED, your doctor might insist on a psychological examination to verify that your decision is not the product of depression, Alzheimer’s or mental illness. Your doctor will be a necessary part of the team to make sure that care is available for your comfort. Your doctor’s advice about medical, hospice or even your family’s care for you will be highly useful, so including them in your decision is important.
To voluntarily stop eating and drinking is your right, but you may need legal assistance in securing this right. If you have questions or if you need assistance, you may contact my firm to speak to an attorney experienced in estate planning.
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