AN ESTATE PLANNER’S ROADMAP TO THE VALLEY OF THE SHADOW OF DEATH: HEALTH CARE DIRECTIVES FROM RELIGIOUS PERSPECTIVES. FEAR

NO EVIL.

Wendy S. Goffe

Graham & Dunn PCPier 70, 2801 Alaskan Way, Suite 300

Seattle, Washington 98121-1128(206) 340-9633 (direct)

wgoffe@grahamdunn.comwww.grahamdunn.com

Wendy S. Goffe is a shareholder with the law firm of Graham & Dunn PC, Seattle, Washington. She is a Fellow of the American College of Trust and Estate Counsel (ACTEC) and a member of the ACTEC Publications Committee. She has a comprehensive estate planning practice that involves all aspects of estate planning for high net worth individuals and families, advising both individuals and charitable organizations concerning planned giving, probate, and trust administration. Wendy has an extensive and constantly updated analysis of the legal and tax implications of same-gender and other non-traditional family relationships, and an active part of her practice involves this work. She is a former Adjunct Instructor at Seattle University Law School. She is currently a member of the YWCA Planned Giving Committee, The Nature Conservancy Planned Giving Committee, The Seattle Foundation Professional Advisory Council, and the Children’s Legacy Council of the Children’s Hospital Foundation. She is a past member of the ABA Taxation Section Community Property Comment Project, the Executive Committee of the Estate Planning Council of Seattle, the Acquisition Committee of the Tacoma Art Museum, the Executive Committee of the WSBA Real Property, Probate and Trust Section, and the Ethics Committee of Valley Medical Center. She is also a past member of the Board of Directors and Grants Committee of The Women’s Endowment Foundation, a supporting foundation of the Jewish Community Endowment Fund, Seattle, Washington.

September 2011

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CONTENTS Page

I. Introduction..................................................................................................1

II. Health Care Directives - Generally..............................................................1

A. Background......................................................................................1B. Definitions........................................................................................1C. Five Wishes......................................................................................1

III. Other Documents.........................................................................................1

A. Medical Powers of Attorney............................................................1B. Mental Health Directives.................................................................1C. Ethical Wills.....................................................................................1D. Physician Orders for Life Sustaining Treatment.............................1E. Death With Dignity Directives........................................................1F. Organ and Tissue Donation.............................................................1

IV. Storing Documents.......................................................................................1

V. Religious Perspectives.................................................................................1

A. Judaism............................................................................................1B. The Orthodox Christian Churches...................................................1C. Catholicism......................................................................................1D. Protestantism in General..................................................................1E. Lutherans in America.......................................................................1F. Episcopal Church.............................................................................1G. Presbyterian Church.........................................................................1

EXHIBIT A: TERMINOLOGY...............................................................................1

EXHIBIT B: MODIFICATIONS TO THE DIRECTIVE FOR ORTHODOX JUDAISM....................................................................................................1

EXHIBIT C: MODIFICATIONS TO THE CATHOLIC HEALTH CARE DIRECTIVE................................................................................................1

EXHIBIT D: PRESBYTERIAN ADVANCE DIRECTIVE/AFFIRMATION OF LIFE.............................................................................................................1

© Wendy S. Goffe 2011

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AN ESTATE PLANNER’S ROADMAP TO THE VALLEY OF THE SHADOW OF DEATH: HEALTH CARE DIRECTIVES FROM RELIGIOUS PERSPECTIVES. FEAR

NO EVIL1

PART I

Part I of this article will discuss the background and history of advance directives, as well as a selection of Western religious perspectives on these documents, with some forms. Part II will examine additional Western religions and some Eastern religious perspectives. Part III will examine spiritual rather than religious perspectives, as well as the many reasons advance directives are criticized as inadequate or unnecessary, and often disregarded.

We obsess in this country about how to eat and dress and drink, about finding a job and a mate. About having sex and children. About how to live. But we don’t talk about how to die. We act as if facing death weren’t one of life’s greatest, most absorbing thrills and challenges. Believe me, it is. This is not dull. But we have to be able to see doctors and machines, medical and insurance systems, family and friends and religions as informative — not governing — in order to be free.2

I. Introduction.

Research has shown that advance care planning — communicating one’s wishes about end-of-life decisions to loved ones, even if not in formal written legal documents — can help relieve the stress on families put in the position of having to make these decisions. Yet, only about one in three Americans has some form of health care directive or document naming a surrogate decision-maker in case of incompetency.3 This may have to do with the complex legal terms used in the documents, as well as the lack of flexibility in the documents to accommodate patients’ values and preferences, as well as religious views. But the absence of such a document can leave a surrogate in a quandary (sometimes having just learned that he or she was named as a decision-maker), and often leaves a negative emotional impact on the surrogate.4

In the past 30 years, the U.S. system of medical ethics has de-emphasized physician paternalism and increasingly emphasized patient autonomy.5 A patient’s capacity for making independent decisions is questioned only if cognitive function or judgment appears to be impaired by either medical or psychiatric illness.6

1 The author is grateful to Martin M. Shenkman for the use of his monograph, Religion and Estate Planning (Oct. 1, 2007), www.apps.americanbar.org/rppt/cmtes/standing-committees/diversity/ReligionandEstatePlanning.pdf, from which several themes of this outline have been developed.2 Dudley Clendinen, The Good Short Life, N.Y. Times, Op-Ed, July 9, 2011), www.nytimes.com/2011/07/10/opinion/sunday/10als.html.3 Laura Landro, A Push for Better End of Life Planning, Wall St. J. Health Blog (Mar. 15, 2011), http://blogs.wsj.com/health/2011/03/15/a-push-for-better-end of life-planning/.4 See id.5 H. Russell Searight & Jennifer Gafford, Cultural Diversity at the End of Life: Issues and Guidelines for Family Physicians, 71 Am. Fam. Physician 515, 518 (2005) [hereinafter “Searight & Gafford”].6Id.

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Competent individuals have a state and federal constitutional right to refuse medical treatment stemming from the right to privacy and liberty.7 States also have an interest in protecting life, and therefore, may refuse to terminate life-support when the person has become incompetent and has not previously made known his or her wishes regarding end-of-life treatment.8 Professional standards as well as customs also provide the foundation for end-of-life policy.

This outline will examine how health care directives can be used to express an individual’s religious and spiritual beliefs concerning healthcare decision-making and end-of-life decisions. Some religious traditions advocate an uncompromising commitment to the preservation of human life under virtually all circumstances, regardless of prognosis, the wishes of the family, the quality of life it may result in, or cost. Other religious traditions emphasize the right to die with dignity, which would allow patients and families to participate in deciding when quality of life is so diminished that it justifies the withholding or termination of medical life-support.

One distinction among the various faiths discussed below is based on whether there is an intermediary between God and the believer (whether considered part of the believer’s relationship with God or simply someone who provides interpretations of God’s message). Those that believe in an intermediary generally also believe that the intermediary should be consulted or participate in end-of-life decisions.

Assisted suicide and aid in dying (often referred to as euthanasia) are concepts that have emerged from the death with dignity movement.9 Among the faiths discussed, most favor palliative care that may, as a result, shorten a patient’s lifespan in the process of controlling pain, in lieu of active euthanasia. In fact, there is a “strong and near-unanimous religious opposition to suicide, assisted suicide, and voluntary euthanasia in America.”10 Few faiths actively support suicide, assisted suicide or euthanasia, rather they take no position on this topic.

While this article will focus mainly on the health care directive, other documents, including Medical Powers of Attorney, Mental Health Directives, Ethical Wills, Physician Orders for Life Sustaining Treatment, Death With Dignity Directives and Tissue and Organ Donation documents, are also discussed below. Collectively these documents will be referred to as “advance directives.” The term “advance directive” appears in the federal Patient Self-

7 Cruzan v. Dir. Mo. Dep’t of Health, 497 U.S. 261, 266 (1990).8 Id. Incompetent persons are referred to herein as “patients,” “clients” or “principals.” The individual named to carry out decisions under the various documents discussed below is referred to as a “decision maker,” “surrogate,” or “agent.” For example, under Washington law, for purposes of giving informed consent for health care, an “incompetent” person is generally any person who is incapacitated by reason of mental illness, developmental disability, senility, habitual drunkenness, excessive use of drugs, or other mental incapacity. RCW 11.88.010(1)(e). 9 See Steve Hopcraft, End of Life Language Choices Matter: It’s “Aid in Dying,” not “Assisted Suicide,” Compassion & Choices, community.compassionandchoices.org/document.doc?id=49 (accessed June 24, 2011) where the author makes the point that “personal end of life choice is most accurately described as “aid in dying.” Research has shown that referring to aid in dying for terminal patients as “suicide” is biased, inaccurate, and demeaning to people who simply wish a choice in the manner of their imminent deaths.”10 Reverend Richard E. Coleson, Contemporary Religious Viewpoints on Suicide, Physician-Assisted Suicide, and Voluntary Active Euthanasia, 35 Duq. L.Rev. 43, 45 (Fall, 1996) [hereinafter “Coleson, Contemporary Religious Viewpoints on Suicide”].

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Determination Act, enacted as §§4206 and 4751 of the Omnibus Budget Reconciliation Act of 1990, and has gained widespread usage among health-care professionals since then.11

Other factors that may be taken into account and expressed as part of a patient’s advance care planning, but not discussed below, include instructions to a decision maker to consider a patient’s financial goals and values and even to take steps to alleviate concerns related to finances;12 beliefs regarding when life begins and ends;13 spiritual beliefs (in addition to or instead of traditional religious beliefs) and the role of psychics and psychic healers;14 and other issues that may trouble seriously ill or dying patients and their families.15

II. Health Care Directives - Generally.

A. Background.11 The Patient Self-Determination Act was enacted as part of the OBRA of 1990, signed by the President on Nov. 5, 1990. OBRA of 1990, Pub. L. No. 101-508, §§4206 and 4751 (Medicare and Medicaid, respectively), )codified in scattered sections of 42 U.S.C. §§1395-1396).12 See Timothy W. Kirk, Ph.D. & George R. Luck, MD, Dying Tax Free: The Modern Advance Directive and Patients’ Financial Values, 39 J. Pain and Symptom Mgmt. 605 (Mar. 2010) for a discussion of this topic.13 See Jennifer Goodwin, When is Someone Brain Dead? Experts Revise Guidelines, USA Today (June 13, 2010) available at www.usatoday.com/news/health/2010-06-12-brain-dead_N.htm; Douglas O. Linder, The Other Right-To-Life Debate: When Does Fourteenth Amendment “Life” End?, 37 Ariz. L.Rev. 1183 (Winter 1995).14 See Michael Gilfix, Advance Health Care Directives, 149 Tr. & Est. 34, 35 (May 2010) for a discussion of this and other nontraditional topics to be considered in a health care directive. With respect to psychics and psychic healers, the author provides the following provision to be included in a health care directive:

Consultation with Psychics or Psychic Healers:

Before making decisions with regard to the non-use of life-sustaining treatment, my agent shall consult with at least two psychics to determine if there still exists energy (psychic or life force) suggesting that there is indeed hope of recovery. In such event, subject exclusively to the discretion of my agent, the termination of life-sustaining treatment may be delayed.

My agent is to reimburse any involved psychics for their out-of-pocket costs and expenses. My agent is also to take all reasonable steps to insure that they are also provided with reasonable compensation by the trustee of my trust for services rendered.

Below, I identify individuals who may be consulted in this capacity. It is my wish and direction that two psychics, at minimum, are to be consulted by my agent. If any named psychic is not available, my agent shall rely on references or additional names provided by the psychics to identify alternative individuals.

In carrying out terms of this provision, my agent is to be flexible and creative so that my agent can be as certain as possible that my wishes are fulfilled. All reasonable fees and reimbursement for travel and other expenses will be paid by the trust, with our gratitude. Any of the psychics listed can recommend another if they are not available. If only one psychic is available, he will be empowered to suggest a second reader. If nobody listed is available for readings or recommendations, then [name of organization] can be used as a source of recommendations of people with psychic gifts. The trustee is empowered to modify this process as she sees fit, if our wishes can not be filled as a practical matter.

The names and contact information for individuals I identify as appropriate psychics are as follows: [list of names and contact information].”

15 See Thaddeus Mason Pope, Legal Briefing: Advance Care Planning, 20 J. Clinical Ethics 362 (Winter 2010) for a discussion of the various legal categories comprising advance care planning.

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The health care directive, also known as an advance directive or “living will,” is a statutory document authorizing the withdrawal or withholding of life-sustaining procedures for a terminal condition if death is imminent.16 It may include provisions regarding the withdrawal or withholding of hydration and intravenous nutrition, as well as intubation and cardiopulmonary resuscitation in the event of a terminal or irreversible condition.17 In the absence of a directive, the wishes of the principal may not be able to be carried out, or even known.

Health care directives have evolved over the past few decades. One of the earliest statements was written by Sissela Bok, a philosopher and Harvard professor, in 1976. It is remarkable that, in spite of all of the changes in thinking about end-of-life decision making since then, it is still a useful document. It provides as follows:

Personal Directions for My Care at the End of Life18

I, _____________________, want to participate in my own medical care as long as I am able. But I recognize that an accident or illness may someday make me unable to do so. Should this come to be the case, this document is intended to direct those who make choices on my behalf. I have prepared it while still legally competent and of sound mind. If these instructions create a conflict with the desires of my relatives, or with hospital policies or with the principles of those providing my care, I ask that my instructions prevail, unless they are contrary to existing law or would expose medical personnel or the hospital to a substantial risk of legal liability.

I wish to live a full and long life, but not at all costs. If my death is near and cannot be avoided, and if I have lost the ability to interact with others and have no reasonable chance of regaining this ability, or if my suffering is intense and irreversible, I do not want to have my life prolonged. I would then ask not to be subjected to surgery or resuscitation.

Nor would I then wish to have life support from mechanical ventilators, intensive care services, or other life prolonging procedures, including the administration of antibiotics and blood products. I would wish, rather, to have care that gives comfort and support, which facilitates my interaction with others to the extent that this is possible, and which brings peace.

In order to carry out these instructions and to interpret them, I authorize _________________, to accept, plan and refuse treatment on my behalf in cooperation with attending physicians and health personnel. This person knows how I value the experience of living, and how I would weigh incompetence, suffering, and dying. Should it be impossible to reach this person, I authorize

16 Washington Natural Death Act, RCW ch. 70.122; Wis. Stat. ch. §154; Or. Rev. Stat. 127.531. See www.caringinfo.org/stateaddownload, and www.noah-health.org/en/rights/endoflife/adforms.html for printable state forms (accessed August 12, 2011). No representation is made as to the accuracy of these forms.17 RCW 70.122.030(1). 18 Adapted from Sissela Bok, Personal Directions for Care at the End of Life, 295 N. Engl. J.Med. 367 (Aug. 1976).

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_________________ to make such choices for me. I have discussed my desires concerning terminal care with them, and I trust their judgment on my behalf.

In addition, I have discussed with them the following specific instructions regarding my care:

Date //Signed//Two Witnesses

The first statutory form was adopted by California in 1976. It was referred to as a “Directive to Physicians” as opposed to the more common “Living Will.” Since then a number of statutory models have been adopted. The primary and most common model evolved from the Uniform Health-Care Decisions Act, promulgated by the National Conference of Commissioners on Uniform State Laws in 1993, and recognized by the ABA on February 7, 1994.19 The Uniform Act establishes baseline requirements for recognizing a broad range of written and oral statements as advance directives. States that have adopted the Uniform Act have almost always added more requirements, including the requirement that the document be witnessed. The Act contains a comprehensive sample form with various options, including the appointment of an agent, organ donation, and the ability to name a primary physician.

One of the earlier and most concise statements, leaving much open to interpretation by those who would be in a position to carry out the principal’s instructions with a lack of excessive “legalese,” is found in a prior version of Vermont’s statutory form, which simply provided as follows:20

Vermont Living Will

To my family, my physician, my lawyer, my clergyman. To any medical facility in whose care I happen to be. To any individual who may become responsible for my health, welfare or affairs:

Death is as much a reality as birth, growth, maturity and old age-it is the one certainty of life. If the time comes when I can no longer take part in decisions of my own future, let this statement stand as an expression of my wishes, while I am still of sound mind.

If the situation should arise in which I am in a terminal state and there is no reasonable expectation of my recovery, I direct that I be allowed to die a natural death and that my life not be prolonged by extraordinary measures. I do, however, ask that medication be mercifully administered to me to alleviate suffering even though this may shorten my remaining life.

This statement is made after careful consideration and is in accordance with my strong convictions and beliefs. I want the wishes and directions here expressed carried out to the extent permitted by law. Insofar as they are not legally

19 NCCUSL, Unif. Health -Care Decisions Act (1993), http://www.law.upenn.edu/bll/archives/ulc/fnact99/1990s/uhcda93.htm (last accessed August 1, 2011).20 18 V.S.A. §5253 (repealed 2005 and replaced by 18 V.S.A. Part 10 Ch. 231).

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enforceable, I hope that those to whom this will is addressed will regard themselves as morally bound by these provisions.

In the absence of a statutory form that suits an individual, this form could be used as a starting point, to be adapted to an individual’s particular wishes. While health care directives are based on statutory forms, to the extent their instructions do not violate public policy, they also provide clients the opportunity to use more than simply formulaic language in expressing their wishes, especially with respect to religious beliefs and restrictions that might apply and are not found in the statutory form documents. Not only has this been shown to aid the grieving and help them to understand the individual’s wishes,21 it has also been shown in some cases to deter instances of undue influence and cause its readers to be more accepting of its content.22

Modifications for religious reasons are discussed in detail below. Ironically, while religion plays a strong role in end-of-life decisions, it was the secularization of Western society during the 19th

century that allowed individuals to begin to perceive their own role in end-of-life decisions and to move away from church dogma on such matters.23 Secularization allowed individuals to view death as a medical event rather than a religious one.

B. Definitions.

A number of technical definitions apply to advance directives (resulting in confusion by the general public and a lack of use of advance directives, as discussed below). Exhibit A sets forth a number of definitions, modified from the Uniform Health-Care Decisions Act, the National Hospice and Palliative Care Organization24 and other sources.25

C. Five Wishes.

Five Wishes is a document that is accepted as a valid health care directive in a number of states. It is essentially an amalgamation of a very detailed health care directive, durable power of attorney for health care decisions, POLST and ethical will (both of which are described below), and allows the principal to describe what quality of life he or she would like at the end of life, including massage and other ways of making the patient more comfortable.26 The wishes include: (i) The person the principal wants to make care decisions for him or her when the principal can’t make them for him or herself, (ii) the principal’s wishes for the kind of medical treatment he or she wants or does not want, (iii) the principal’s wishes for how comfortable the 21 Deborah S. Gordon, Reflecting on the Language of Death, 34 Seattle U.L.Rev. 379, 395 (2011).22 Id. at n. 151 and accompanying text.23 Kristina Ebbott, A "Good Death" Defined By Law: Comparing The Legality Of Aid-In-Dying Around The World, 37 Wm. Mitchell L. Rev. 170, 179 (2010) (citing Ian Dowbiggin, A Concise History of Euthanasia: Life, Death, God and Medicine 57-58 (Donald T. Critchlow ed., 2005)).24 National Hospice and Palliative Care Organization. Glossary and Abbreviations, www.caringinfo.org/i4a/pages/index.cfm?pageid=5634 (accessed May 16, 2011).25 Except unless otherwise indicated, adapted from Anne Wilkinson, Ph.D., et al., U.S. Dep’t of Health & Human Servs. (June 2007), www.aspe.hhs.gov/daltcp/reports/2007/advdirlr.htmhttp://www.aspe.hhs.gov/daltcp/reports/2007/advdirlr.htm (accessed May 16, 2011).26 See www.agingwithdignity.org/five-wishes.php (accessed April 25, 2011) for a customizable form and a list of states where the form meets the state’s requirements for a health care directive.

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principal wants to be; (iv) the principal’s wishes for how the principal wants people to treat him or her; and (v) the principal’s wishes for what he or she wants his or her loved ones to know.

III.Other Documents.

Individuals may use a number of other documents to describe their wishes regarding their health care and end-of-life decisions. These include:

A. Medical Powers of Attorney.

This document, sometimes called a Durable Power of Attorney for Health Care, is a statutory form in each state that allows patients to select a surrogate decision-maker to make certain medical decisions when patients are temporarily or permanently unable to communicate or make such decisions.

As in many states, in Washington, in the absence of a medical power of attorney, RCW 7.70.065 provides that the following individuals may give informed consent on behalf of an individual unable to consent, which includes: (i) the patient’s spouse or registered domestic partner; (ii) children of the patient who are at least eighteen years of age; (iii) parents of the patient; and (iv) adult brothers and sisters of the patient. It is important to note that state law does not give any authority to an unregistered domestic partner.27

B. Mental Health Directives.

In some states, including Washington, a medical power of attorney may also be used to allow a mentally ill person to express his or her preferences regarding mental health treatment from psychiatrists and other mental health care professionals.28 The mental health advance directive allows individuals to bind themselves to psychiatric treatment in advance of needing it for the purpose of overcoming illness-induced refusals of treatment. Between 1991 and 2006, 27 states enacted statutes authorizing psychiatric advance directives in some form.29 Because they do not deal with end-of-life decisions, they are not covered in greater detail here.

C. Ethical Wills.

In his book Healthy Aging: A Lifelong Guide to Your Physical and Spiritual Well-Being,30 Dr. Andrew Weil advised that preparing an ethical will is a “gift of spiritual health” that one can leave for his or her family. An ethical will can communicate to one’s descendants a person’s

27 See Rebecca K. Glatzer, Equality at the End: Amending State Surrogacy Statutes to Honor Same-Sex Couples’ End of life Decisions, 13 Elder L.J. 255 (2005) for an examination of the many statutory approaches to surrogate decision making for same-sex and unmarried couples. See also Funeral Consumers Alliance, Who Has the Right to Make Decisions About Your Funeral, www.funerals.org/your-legal-rights/funeral-decision-rights (last updated Mar. 1, 2011).28 RCW 71.32.010; Wis. Stat. ch. §155.29 Breanne M. Sheetz, The Choice to Limit Choice: Using Psychiatric Advance Directives to Manage the Effects of Mental Illness and Support Self-Responsibility, 40 U. Mich. J.L. Reform 401, 408 (Winter 2007).30 Andrew Weil, MD., Healthy Aging: A Lifelong Guide to Your Physical and Spiritual Well-Being (Knopf 2005).

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cultural history, and ethical and spiritual values.31 The goal of writing an ethical will is to link a person to both their family and cultural history, clarify their ethical and spiritual values, and communicate a legacy to future generations. It can also be used as a tool for spiritual healing by the writer and the readers.

Barack Obama’s letter to his daughters is a form of ethical will, in which he expresses his love, spiritual values, blessings, hopes and dreams for his daughters, passes on life-lessons and wisdom gained from his experiences, requests forgiveness for regretted actions, and sets forth his rationale for the paths he has taken.32

D. Physician Orders for Life Sustaining Treatment.

Many states, including Washington,33 California34, West Virginia35 and New York36 have variations of Physician Orders for Life-Sustaining Treatment (“POLST”) forms, a document developed by health care professionals as a standardized method to summarize a patient’s wishes regarding life-sustaining treatment. This document is meant to supplement a health care directive. The form varies from state to state, but it is generally signed by both the patient and the doctor and becomes part of the patient’s medical record. It is printed on a bright colored card stock so as to be visible in a patient’s file (e.g., bright green in Washington, hot pink in West Virginia).

POLST forms replace what were formally known as DNR or Do Not Resuscitate Orders. While a POLST form is typically broader than a DNR Order, it in part simply represents a paradigm shift from a discussion of withholding treatment versus a newer concept of allowing a natural death, along with an ability to provide explicit instructions for making critical decisions concerning a patient’s care.37 The older DNR Orders were less precise. POLST, while often leading to the same outcome, offers more detail, potentially relieving the burden of decision-making by others who may not know what the patient would have chosen. Studies have shown that this paradigm shift has allowed patients to, in many cases, receive the care they want and avoid unwanted treatment.38 31 See Zoe M. Hicks, Is Your (Ethical) Will in Order?, 33 ACTEC Law J. 154 (Winter 2007) for a thorough discussion of the history of ethical wills beginning with its Old Testament origins, possible content and forms.32 Barack Obama, Of Thee I Sing: A Letter to My Daughters (Knopf Books for Young Readers 2010) and excerpts widely available. See www.parade.com/news/2009/01/barack-obama-letter-to-my-daughters.html (accessed Jan. 6, 2011).33 RCW 43.70.480.34 Cal. Prob. Code §4780.35 W. Virginia Health Care Decisions Act §16-30-3(u), referred to as Physicians Orders for Scope of Treatment (POST).36 N.Y. Pub. Health L. §2977(13), referred to as Medical Orders for Life-Sustaining Treatment (“MOLST”). See www.nyhealth.gov/professionals/patients/patient_rights/molst/ for further information (accessed Jan. 5, 2011). 37 Paula Span, D.N.R. by Another Name, N.Y. Times New Old Age Blog (Dec. 6, 2010), http://newoldage.blogs.nytimes.com/2010/12/06/d-n-r-by-another-name/ (last updated Jan. 2011).38 Susan E. Hickman, Ph.D., et al., A Comparison of Methods to Communicate Treatment Preferences in Nursing Facilities: Traditional Practices Versus the Physician Orders for Life-Sustaining Treatment Program, 58 J. Am. Geriatr. Soc’y 1241 (July 2010).

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The form is intended to be portable and must be on file with a particular physician in order for it to be followed. The form allows an individual to express his or her wishes with respect to resuscitation, various types of medical interventions, feeding tubes, ventilators, and antibiotics. POLST is currently used in over a dozen states and is in development in at least 20 more.

E. Death With Dignity Directives.

State Natural Death Acts generally allow a competent adult, pursuant to a properly executed directive, to express his or her wishes regarding the removal or withholding of life-sustaining treatment where such treatment would only artificially prolong the time of death, which is otherwise imminent due to an incurable injury, disease or illness. What the Natural Death Acts do not deal with is the right to obtain medication from one’s physician to be self-administered to control the time, place and manner of one’s own impending death. Both Washington’s and Oregon’s Death With Dignity Acts permit a competent individual with less than 6 months to live to receive a prescription for medication, to be self-administered, to control the time, place and manner of such individual’s death.39

The American College of Legal Medicine issued a statement on October 6, 2008 recognizing patient autonomy and the right of a mentally competent, though terminally ill, person to hasten what might otherwise be objectively considered a protracted, undignified, or painful death, provided, however, that such person strictly complies with law specifically enacted to regulate and control such a right.40 A number of other medical organizations have also issued similar statements in support of such measures.41 Nevertheless, this remains a controversial topic and one that is beyond the scope of this outline.42

F. Organ and Tissue Donation.

The Uniform Anatomical Gift Act was approved by the National Conference of Commissioners on Uniform State Laws in 1968 to harmonize the various practices related to the increase in organ transplantations.43 It has been adopted in Washington as RCW ch. 68.64. The Uniform 39 Or. Rev. Stat 127.800.995 (passed in 1994 and went into effect in 1997), and RCW 70.245.903 (commonly known as I-1000, passed on Nov. 4, 2008 and effective Mar. 5, 2009) both permit a patient to do just this.40 See The American College of Legal Medicine Policy on Aid in Dying, www.aclm.org/resources/amicus_briefs/ACLM%20Aid%20in%20Dying%20Policy.pdf (effective Oct. 6, 2008). See also www.doh.wa.gov/dwda/ for information about I-1000, forms, statistics and related information (last updated Mar. 10, 2011).41 See, e.g., American Public Health Association's policy, Supporting Appropriate Language Used To Discuss End of Life Choices https://community.compassionandchoices.org/document/doc?=id%3f268 (Nov. 8, 2006); American Medical Women's Association Position Statement on Aid in Dying, http://www.amwa-doc.org/gallery2-219/aidindying (approved Sept. 9, 2009).42 For a discussion of the issues raised, see Pamela J. Hanlon, The Washington Death with Dignity Act: What Should You Know?, 63 Wash. State Bar News 11 (April 2009); and Margaret K. Dore, “Death With Dignity”: A Recipe For Elder Abuse And Homicide (Albeit Not By Name), 11 Marq. Elder’s Advisor 387 (2010). See also Kristina Ebbott, The Future Of Elder Law: Article: A "Good Death" Defined By Law: Comparing The Legality Of Aid-In-Dying Around The World, 37 Wm. Mitchell L. Rev. 170 (2010) for a thorough analysis of the origins of this movement, and its current status.43 NCCUSL, Revised Unif. Anatomical Gift Act (2006) (last Revised or Amended in 2008), www.uniformlaws.org/Act.aspx?title=Anatomical%20Gift%20Act%20(2006).

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Anatomical Gift Act makes sure that the donations of organs are followed in an ethical manner. It covers anatomical gifts for transplantation as well as the donation of bodies to medical institutions and to hospitals for teaching and experimentation.

The Act has been revised to streamline the process of making an anatomical gift. The latest version of the Act eliminates a requirement of the witnesses, and encourages the states to allow an anatomical gift to be made by a notation on a driver's license. Many individuals also incorporate their wishes regarding anatomical gifts into a health care directive, a medical power of attorney, or burial or cremation instructions, to make sure that these wishes are known.

New York Organ Donor Network maintains a comprehensive web site on a broad range of religious viewpoints, not all of which are covered below.44

IV. Storing Documents.

A number of states now provide electronic registries for its citizens, where documents can be stored and then accessed remotely if needed, so that an individual’s wishes can be known and honored when necessary, even in the absence of a copy of the actual document.45

V. Religious Perspectives.

The following is a discussion of terms that members of various faiths may want to include in their advance directives.

In attempt to organize this discussion, the faiths are grouped as follows: (i) Western religions, which include Judaism, Christianity and Islam. Within Christianity there are three major divisions - Catholicism, Orthodoxy, and Protestantism, which is further divided into a number of groups, only some of which are discussed below (some faiths self-identify as Christian while those outside the faith may not agree, a distinction beyond the scope of this article); and (ii) Eastern Religions, which includes Buddhism and Hinduism. The author is aware that some may disagree with this taxonomy. It is not meant to connote an opinion, merely one convenient way of organizing a tremendous amount of varied faiths and beliefs.

Within each faith there can be a great variety of beliefs, and within a particular branch, authorities may not always agree on what is approved and not approved, and practitioners may have their own ideas as to how to adhere to their own religion. Furthermore, the author’s

44 Religious Viewpoints, http://www.donatelifeny.org/just-for-you/religious-leaders-amp-clergy/religious-viewpoints/ (last accessed July 31, 2011). 45 California advance directives may be registered at www.sos.ca.gov/ahcdr/, where information is stored and made available upon request, to the registrant’s health care provider, guardian, or other legal representative. Cal. Prob. Code §§4800-4806. See also, Washington: RCW 70.122.120-140 (program discontinued due to budget cuts, but documents registered prior to June 20, 2011 can be accessed at www.uslivingwillregistry.com); Nevada: Nev. Rev. Stat. §§449.900 - .965 and http://www.nvsos.gov/index.aspx?page=214; Vermont: 18 V.S.A. ch. 231 (§§9700-9720) and www.healthvermont.gov/vadr/register.aspx. See also Joseph Karl Grant, The Advance Directive Registry or Lockbox: A Model Proposal and Call to Legislative Action, XX J. of Legislation 101 available at SSRN: http://ssrn.com/abstract=1857716 (advocating that other states follow the lead of these 3 states, by adopting similar legislation and create Internet “lockboxes,” registries, or portals where citizens can store their advance directives, and health care providers can access these advance directives when needed).

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research is in no way exhaustive, nor is it uniformly comprehensive for all religions. Background information as well as drafting language is provided when it is available from recognized religious sources. Thus, the information below should not be relied upon, but should instead be used as a starting point for background and further research.

The relevant issues that tend to have a religious perspective include the following: Withholding of nutrition and hydration; cardiopulmonary resuscitation and other heroic measures; comfort care and pain control; assisted suicide; intervention where a woman is pregnant (is the life of the mother or the child given preference, or are their rights balanced?); last rites; organ donation; handling of the body after death; disposition of remains (cremation or burial, although it should be noted that for environmental reasons many individuals who otherwise scrupulously follow the tenets of their religion opt for cremation, in spite of the fact that their particular religion may allow only for burial); and finally, whether autonomous decision making is encouraged or whether is made by consensus (by a group that may be comprised of only close family members or may include clergy). These issues could serve as a checklist for the drafting attorney.

Ideally a client may have considered these issues and sought religious counseling with their spiritual leader or a member of their faith with specialized knowledge of these matters prior to meeting with the attorney. If not, the client, at some point in the drafting process should confirm that any specialized drafting comports with his or her personal beliefs.

With respect to the practitioner of any faith, it is recommended that recitals be incorporated into a client’s living will that affirms his or her affiliation with a particular religion or faith. This is especially important where a client is a member of a different religion or faith than those carrying out his or her wishes and/or from his or her family of origin. Furthermore, even when a client and the family are all members of the same religion or faith, beliefs vary from individual to individual, and it should never be assumed that a family knows what to do. When left unstated, there is often a doubt remaining in the minds of those in the position to carry out wishes that could easily be avoided with a few extra sentences or paragraphs in the applicable documents.

A. Judaism.

Jewish thought can be classified in three subcategories: Orthodox, Conservative and Reform sets of beliefs. Although the lines between these three traditions are blurry, they are admittedly over-simplified for the purpose of maintaining brevity in this outline and further resources have been provided for the reader who wishes to delve deeper into the beliefs of any of these traditions.

Orthodox Judaism relies on the Torah as the word of God, and looks to its religious sources (rabbinical interpretations of the Torah) for developing moral positions. Within those sources, conflicting viewpoints often arise. Most issues for Orthodox Jews in the health care context arise from questions caused by new technologies, which have been addressed by contemporary rabbinic scholars. Unlike in Catholicism, where rulings are promulgated by a central authority, various rabbinic authorities may issue new opinions, some of whom are dominant but none decisive.

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Conservative Jews generally view the various sources of law in their historical context and are less likely to strictly interpret them. They consider Jewish law to be binding, but also are willing to adapt those laws to modern needs.

Reform and Reconstructionist Judaism do not consider Jewish law to be binding, but it may be voluntarily adhered to. Autonomy is central to these movements, but the law and ritual is a resource and a guide for moral decision making and a healthy lifestyle.

Orthodox Judaism is discussed in greater detail below. The other denominations follow variations on these principles and practices.

1. Orthodox Judaism.

In all Jewish traditions, life is sacred.46 Individuals have the responsibility to care for themselves and seek medical treatment when needed—a responsibility owed to themselves, their loved ones, and to God. The fact that the quality of life can never be what one would hope for cannot alone justify a decision to shorten life. So great is the value of life that in some instances a patient can, according to Orthodox Jewish law, be encouraged, convinced, or even forced, to accept medical treatment. Everything must generally be done to save and prolong life. Like Islam, discussed below, with respect to pregnancy, preserving the mother’s life over the fetus is permitted.

Nevertheless, Judaism attempts to strike a balance between the strong interest in prolonging life, and recognition that life may become unbearable. Thus, it does not require that every life saving measure be taken in every situation. Euthanasia, or hastening death, is not permitted. It is permissible to passively remove a mere impediment to death since it is improper to prolong the act of dying. For example, where a patient experiences great pain and suffering, medications that will merely prolong a life of suffering, may be refused. It is even permitted to pray for someone in such pain to die, to end the suffering.

These principles can be applied in various situations. When a decision concerning resuscitation must be made, if the patient’s general health is so frail that resuscitation itself could entail substantial risks to life, resuscitation may be avoided. Pain relief, where the primary intent is to make the patient more comfortable, not to hasten death, is permitted, even though the administration of pain relief may hasten death. When a patient is on a respirator which is assisting breathing, disconnecting the respirator is generally prohibited. If a respirator may be disconnected temporarily to care for the patient, or to maintain the equipment, the question of whether it must be reconnected can be difficult. When a respirator is merely artificially maintaining breathing, the response may differ. However, where the patient has died (pursuant to an acceptable definition of death under Jewish law) removal is mandatory since not to do so would merely delay burial, which is not permitted.

The refusal of food and water is generally not permitted. Jewish law, according to some authorities, views the provision of food and water as supportive care that must be given, and not as a medical treatment which can be avoided. However, where the inserting of a tube, such as a gastric tube, is inherently harmful, there may be a basis to argue that the risks are sufficient to

46 Further information on Orthodox Jewish beliefs in the context of health care can be found at http://www.jlaw.com/Forms/ (accessed July 12, 2011).

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argue against insertion. The side effects that the tube feeding may cause must be evaluated if a decision is to be made not to insert such tubes. The evaluation of the medical risks and the implications of such risks for Jewish law are dependent on the specific circumstances of each patient. The issue is a difficult one, since the failure to provide nutrition and hydration will certainly and directly lead to death. Thus, in drafting a directive great care must be exercised in making general statements concerning withdrawal or non-provision of nutrition and hydration.

An old perception among many Jewish people was that organ donation is improper and that every limb must be buried with the deceased. This belief is not uniformly held. Many believe that organ donation is not only permitted, but encouraged, where the organs are used to save a life or improve a donee’s health, as opposed to having the organs used for research

Organ donation is tied to the definition of brain death, since timing for the harvesting of organs for transplantation is critical. Modern medical intervention allows life to be preserved beyond brain death (or, as some would argue, beyond when the life previously associated with that body has ended). Most Jewish scholars have rejected the brain stem definition of death. 47

Accordingly, while organ donation is not strictly forbidden, the ability to reasonably retrieve transplantable organs from an Orthodox Jew may be limited.

Judaism puts more trust in the recommendations of physicians than contemporary society in general. Nevertheless, Orthodox Jews are encouraged to sign advance directives and to nominate proxy decision makers. As with the Roman Catholic health care directive, discussed below, several modifications should be made to a health care directive for an Orthodox Jew. These may include: modification of the provisions regarding the preference for nutrition and/or hydration, wishes with respect to treatment if pregnant, and, if the principal has made arrangements with a burial society (known as the Chevra Kadisha) for the handling and disposition of the body after death, the client may wish to advise his or her agents of such arrangements. These and other provisions are reflected in the forms set forth in Exhibit B, which contains options in varying detail that an Orthodox Jew may consider adding to his or her health care directive.

2. Conservative Judaism

Within the Conservative movement are two differing positions put forward by Rabbis Avram Israel Reisner and Elliot N. Dorff, both approved by the Conservative movement's Committee on Jewish Law and Standards.48 Both positions agree on the value of life and the individual's responsibility to protect his or her life and seek healing. Both agree on the autonomy of a patient to make decisions about treatment when risk or uncertainty are involved. Both would allow terminally ill patients to rule out certain treatment options (such as those with significant side effects), to forgo mechanical life support, and to choose hospice care as a treatment option.

Nevertheless, important differences between the two positions may be found regarding both theoretical commitments and practical applications. Rabbi Reisner affirms the supreme value of 47 Fred Friedman, M.D., The Chronic Vegetative Patient: A Torah Perspective, 26 J. of Halacha & Contemp. Soc’y 88, 91 (1993).48 Papers by Rabbis Dorff and Reisner that explain the reasons supporting their views and the practical implications of their positions appear in Conservative Judaism, vol. 43(3) (Feb. 1991).

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protecting all life. He teaches that even the most difficult life and that of the shortest duration is yet God given, purposeful, and ours to nurture and protect. All nutrition, hydration, and medication should be provided whenever these are understood to be effective measures for sustaining life. Some medical interventions, however, do not sustain life so much as they prolong the dying process, and are therefore not required. Treatment may be avoided if it would cause fear, risk, or pain, in the interest of the remaining moments of life. But it may not be avoided in an attempt to speed an escape into death.

Rabbi Dorff finds a basis in Jewish law to grant greater latitude to the patient who wishes to reject life-sustaining measures. He sees a life under the siege of a terminal illness as an impaired life. In such a circumstance, a patient might be justified in deciding that a treatment that extends life without hope for cure would not benefit him or her, and may be forgone.

The Conservative movement has published a form of advance directive, which presents both of the positions put forward by Rabbis Reisner and Dorff.49 In addition, a form issued by the Committee on Jewish Law and Standards of The Rabbinical Assembly, which was drafted to conform to the requirements of New York Law, may be found at www.rabbinicalassembly.org/sites/default/files/public/publications/medical%20directives.pdf.

3. Reform Judaism

Reform Judaism recognizes the Jewish tradition to choose life (Deuteronomy 30:19), but at the same time "quality of life" is also valued. This conflict creates a dilemma for end-of-life decision making, leaving each person or family member to define "quality" and to determine whether it should be a valid factor in decision-making. As science improves life-sustaining techniques that are neutral on the question of life's quality, the decision-making process becomes more difficult.

The Reform Jewish movement believes in the right to refuse medical treatment that only prolongs the act of dying. It also recognizes that some may choose to live and that many would choose not to endure pain and suffering, and for them adequate palliative care must be provided.50

Reform Judaism advocates organ donation in order to heal or save life is in keeping with the Jewish tradition of making the world a better place for others. However, Reform Judaism looks to Jewish sources to provide guidance, not absolutes, regarding end-of-life decisions. These decisions are considered deeply personal in nature. While practical advice and consolation may be found in the guidance provided by Jewish tradition, the choice is ultimately up to the individual.

49 Rabbi Aaron L. Mackler, ed., Jewish Medical Directives for Health Care/Living Will (The Rabbinical Assembly, 1994), reprinted in Life and Death Responsibilities in Jewish Biomedical Ethics, 366-85 (The Jewish Theological Seminary of America, 2000).50 Compassionate and Comfort Care Decisions at the End of Life, urj.org//life/health/bioethics//?syspage=article&item_id=18280, Adopted by the Gen. Ass. (Atlanta, Nov. 30 – Dec. 3, 1995).

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The Union of American Hebrew Congregations has published A Time to Prepare,51 a practical guide for expressing one’s wishes regarding end-of-life decisions, with forms.

B. The Orthodox Christian Churches.

The Orthodox Christian Churches emerge from the Church of the first eight centuries of Christianity, before Charlemagne became ruler of the Holy Roman Empire. It sees itself as a continuation of the Apostolic traditions, distinct from Catholicism. Orthodoxy arose as a result of the “Great Schism” of 1054, which formally divided the State church of the Roman Empire into Eastern (Greek) and Western (Latin) branches, and later became known as the Eastern Orthodox Church and the Roman Catholic Church (discussed below).

The Orthodox church views human life as a gift from God, who is also the primary source of healing. The Church views healing of physical illness by the medical profession as a God-given art to carry out God’s will. Thus, the Orthodox turn to a combination of modern medicine and faith for healing. Both euthanasia and suicide are considered murder.52 As long as there is a reasonable hope that medical intervention can have a therapeutic effect, life sustaining treatment may not be withheld or removed.

Suffering is seen as a consequence of sin, and while medicine can be used to relieve suffering, it can also be redemptive if attempted to be understood. Efforts should be made to control pain and suffering but an attempt to keep the patient conscious (even if the result is pain) should be made to administer the sacraments of Holy Confession and Holy Eucharist. However, once no therapeutic outcome is expected, palliative care may be administered.53

The beliefs with respect to advance directives of the Orthodox Christian Churches and Catholicism, discussed below, are not dissimilar. The expressions of a patient in an advance directive are to be considered along with the opinions of the medical professionals involved, family and one’s priest.

An Orthodox advance directive should stipulate that in the case of incapacity, a close relative may make medical decisions on behalf of the patient.54 The directive should also indicate that when the patient’s condition is considered terminal, they are to be spiritually prepared for death through the sacraments of Holy Confession and Holy Communion.55 When no reasonable hope for recovery remains, the person may be allowed to die.56

Where Catholicism and Orthodoxy appear to deviate has to do with the performance of and the details involved in last rites. As with Catholic individuals, it is very important to specifically describe the type of last rites an individual desires, and their wish for lucidity during such period.

51 Rabbi Richard F. Address, ed., A Time to Prepare (Rev. ed. 2002), (New York: UAHC Press, 2002).52 Coleson, Contemporary Religious Viewpoints on Suicide, supra note Error: Reference source not found, at 48.53 Id.54 Rev. Dr. Stanley S. Harakas, Living the Faith: The Praxis of Eastern Orthodox Ethics at 129-130 (Minn., MN: Light & Life Publishing Co., 1992.55 Id.56 Id.

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Within the Orthodox Christian Churches, the variation of traditions concerning last rites is broad, touching upon the prayers, hymns, individuals to be present, and other elements.

On the topic of organ donation, the Rev. Stanley S. Harakas, former professor of ethics at Holy Cross Greek Orthodox School of Theology has written:

Although nothing in the Orthodox tradition requires the faithful to donate their organs to others, nevertheless, this practice may be considered an act of love, and as such is encouraged. The decision to donate a duplicate organ, such as a kidney, while the donor is living, requires much consideration and should be made in consultation with medical professionals and one's Spiritual Father. The donation of an organ from a deceased person is also an act of love that offers the recipient a longer, fuller life. Such donations are acceptable if the deceased donor had willed such action, or if surviving relatives permit it providing that it was in harmony with the desires of the deceased. Such actions can be approved as an expression of love and if they express the self-determination of the donor. In all cases, respect for the body of the donor should be maintained [for Orthodox burial rites].57

The Orthodox previously determined death by the cessation of heart activity and breathing, but now rely on brain death as the determinative factor. Cremation is prohibited, generally. However, exceptions can be made where a non-Orthodox spouse has a different preference. In addition to a Church funeral, there is often a memorial service on the 40th day and 6 th month following death, and annually thereafter.

C. Catholicism.58

Catholicism was the first religion to trace its roots directly to Jesus of Nazareth and the teachings of his apostles, particularly the teachings of Paul. Catholicism teaches that all human life is sacred, from the moment of conception until a natural death, and all human beings, regardless of physical or mental abilities, share an equal human dignity meriting both respect and protection. Catholics may not forgo ordinary means of care, which typically includes nutrition and hydration. One is free, under Catholicism’s teaching, to forgo the use of extraordinary care that prolongs life in a terminal illness. Extraordinary care refers to any means that would reverse a process that is otherwise running its course; in other words, measures to prolong life that otherwise offer no reasonable hope of benefit or involve excessive hardship. This could include antibiotics, some surgical interventions and artificial resuscitation, and in some cases, even nutrition and hydration if there is sufficient benefit to outweigh the burden to the patient.

Catholics are encouraged to execute advance directives and to name proxy decision makers, so long as the directive does not violate moral or Catholic principles. An agent may never deny

57 Rev. Dr. Stanley S. Harakas, Pastoral Guidelines: Church Positions Regarding the Sanctity of Human Life, reprinted in Greek Orthodox Archdiocese of America 2011 Yearbook at 261 available at http://www.goarch.org/archdiocese/yearbook/2011yearbook.pdf.58 Including the citations herein, this section was based on Ronald P. Hamel, updated by Kevin O’Rourke, Religious Beliefs and Healthcare Decisions: The Roman Catholic Tradition, in the Religious Traditions and Health Care Decisions Handbook Series (Park Ridge Ctr. for the Study of Health, Faith & Ethics, 2002);

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nutrition and hydration if they are capable of sustaining human life, as long as this is of sufficient benefit to outweigh the burdens (suffering) to the patient. In the absence of an advance directive, where a patient does not possess decision-making capacity, those closest to the person: family members and loved ones are encouraged to participate in treatment decisions.

Euthanasia, suicide and aid in dying are never permitted.59 In the Catholic tradition, suffering is a mystery, and that which cannot be alleviated is thought to be redemptive: an opportunity for redemption, purification and salvation, which could be prevented where pain is controlled to the point of unconsciousness.

For many religions, including Catholicism, one is thought to be able to suffer into truth. As a result, pain control is not prohibited, but any type of pain relief that would hasten death must not be administered. Last rites, which includes confession of one’s sins and receipt of Holy Communion just prior to death requires consciousness. So, while pain control is not entirely prohibited, these conflicting desires need to be taken into account when prescribing it.

For complications that arise during pregnancy, generally, anything that would cause death of an unborn child or the mother is prohibited; both lives are sacred. One life cannot be chosen over another; this is believed to be in God’s hands. Life-sustaining treatment must be provided to a dying pregnant mother if continued treatment may benefit the unborn child.

The Catholic belief as to when death occurs is the irreversible cessation of all brain functions. This definition facilitates the possibility of organ donations. Organ donation is neither required nor prohibited by the Church, although it is viewed as a noble act of charity.60 Thus, the principal may express a desire to donate, or not to donate organs, for transplantation or experimentation.

With these concepts in mind, the modifications set forth in Exhibit C could be made to a health care directive for a Catholic individual, among other changes, replacing those provisions where the principal would indicate a preference for nutrition and/or hydration, and wishes with respect to treatment if pregnant.

D. Protestantism in General.

Because of the many different Protestant denominations, it is difficult to make a universal statement on Protestant attitudes concerning advance directives and end-of-life decisions. Generally, Protestant faiths respect individual conscience and a person's right to make decisions regarding his or her own body, and they are encouraged to consider that each life is precious and deserving of respect and care. They are strongly encouraged to discuss end-of-life decisions with their family and spiritual leaders rather than make end-of-life decisions autonomously, but also to execute a health care directive that expresses the wish for non-intervention.

59 Pope John Paul II, Evangelium Vitae (1995) reprinted in 24 Origins 689 (1995).60 Catholic News Service, Origins at 459 (Dec. 15, 1994).

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For those who choose not to execute advance directive, it would be considered immoral to withhold medical treatment even if doing so would only prolong dying. Protestants almost universally consider suicide, assisted suicide or euthanasia morally wrong.61

Most Protestant faiths do not subscribe to the belief that resurrection involves making the physical body whole again. Hence, Protestant faiths tend to be supportive of cremation, and strongly encourage organ and tissue donation.

The Church urges its members to aggressively pursue a peaceful death and maintain control and dignity, free from intrusion of unwanted and technology, and also from intolerable suffering because of under-use of available pain medication, including narcotics.

A few but by no means exhaustive collection of Protestant denominations are discussed below, which demonstrate general adherence to these beliefs. Because many practices are common to several Protestant denominations, it can be assumed that the denominations below follow the general positions discussed in this section unless specifically called out to the contrary.

E. Lutherans in America.

Lutheranism is divided into two large (and a number of smaller) denominations. The larger ones are the Evangelical Lutheran Church of America (the “ELCA”), and the Lutheran Church – Missouri Synod (the “LCMS”), which is considered more conservative. The ELCA is primarily discussed below.

Lutherans in general embrace modern medicine and strongly believe that “[he]ealth is central to our well-being, vital to relationships, and helps us live out our vocations in family, work, and community. Caring for one’s own health is a matter of human necessity, good stewardship and social responsibility.62 Caring for the health of others expresses both love for our neighbor and responsibility for a just society.

The ELCA espouses the belief that a patient is not isolated, but in a relationship with other individuals and with God; and an individual’s decisions should take the concerns of others into account and be made in supportive consultation with family members, close friends, pastor, and health care professionals.63 Nevertheless, the patient is the primary decision maker with respect to treatment. To that end, a patient is encouraged to express his or her wishes through an advance directive, living will, and/or conversation with family or designated surrogates, to foster responsible decisions at the end of life.64 Where this consent is not given, physicians should accept the desired limits of treatment, even when they do not agree with the decision.

61 Coleson, Contemporary Religious Viewpoints on Suicide, supra note Error: Reference source not found, at 50.62 ELCA, Caring for Health: Our Shared Endeavor, a social statement of the ELCA as amended and adopted by more than two-thirds majority vote by the 8th biennial Church wide Assembly on August 15, 2003, at Milwaukee, Wisconsin available at http://www.elca.org/What-We-Believe/Social-Issues/Social-Statements/Health-and-Healthcare.aspx.63 Id.64 Id. at 8.

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The ELCA does not see suffering as a virtue. Physicians and other health care professionals are responsible for relieving suffering, including aggressive management of pain, even when it may result in an earlier death.65

The decision to donate organs is personal and not specifically dictated by the Lutheran Church, yet can be informed by the Lutheran faith.66

F. Episcopal Church.

The Episcopal Church, also a Protestant denomination, is a branch of the Anglican Communion, an international group of self-governing churches that grew out of the Church of England in the late 18th century, and continues a close association to this day. The Episcopal Church also has close ties with the Evangelical Lutheran Church in America. The Episcopal Church has not published standardized forms for living wills or health care proxies. The Church’s positions are generally expressed in resolutions that are adopted at its General Conventions, held every three years. These views are enhanced by other writings from within the leadership of the Church.

No single document expresses the Church’s views concerning bioethics and health care. The Church’s official position on living wills is stated in Resolution 1991-C008, entitled “Reaffirm the 1982 Resolution on the ‘Living Will.’”67 In general, the Episcopal Church espouses the beliefs discussed above for Protestants in general.68

Life need not be extended at all cost and when medical intervention cannot change the inevitable fact of impending death, there is no moral obligation to postpone dying; in the absence of a directive to the contrary, it is morally appropriate to withhold or withdraw life sustaining treatment.69 The Episcopal Church has urged its members to seriously consider the opportunity to donate organs so that others may live after their death.70

G. Presbyterian Church.

Presbyterianism refers to many different Protestant churches adhering to the theological traditions of John Calvin (1509-1564). Presbyterian theology typically emphasizes the sovereignty of God, the authority of the Scriptures, and the necessity of grace through faith in Christ. Generally, Presbyterians are encouraged to take personal responsibility for their health through positive lifestyle choices, and consulting health care professionals when necessary.71

65 Id. at 15-16.66 http://www.elca.org/What-We-Believe/Social-Issues/Resolutions/2004/CC04,-p-,04,-p-,14-Donation-of-Organs-Tissue-and-Whole-Blood.aspx. 67 Resolution 1991-C008, Journal of the General Convention of The Episcopal Church, Phoenix at 386 (General Convention 1992).68 Cynthia B. Cohen, et al., Faithful Living, Faithful Dying: Anglican Reflections on End of Life Care, at 61-62 (Harrisburg, PA: Morehouse, 2000) [hereinafter “Cohen, Faithful Living”].69 Cohen, Faithful Living supra note Error: Reference source not foundId., at 44, 65.70 Resolution A097, Journal of the General Convention 1991.71 Presbyterian Church (USA), Minutes 200th Gen. Ass., Part I: Journal at 524 (Louisville: Office of the Gen. Ass., 1988).

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The largest U.S. Presbyterian denomination is The Presbyterian Church U.S.A., which passed Overture 98-50 at its 1998 – 210th General Assembly, addressing end-of-life planning issues. Presbyterians are encouraged to reflect on their own values and discuss these issues frankly with their health care providers, family, friends and clergy, to permit informed decision-making. Patient autonomy and choice are fundamental and to that end, Presbyterians are encouraged to designate agents in a health care directive to carry out their instructions if unable to do so personally.

Ultimately the Church provides that the choice whether or not to undergo further treatment, whether or not to consent to heroic measures, or donate tissue and organs is a personal decision, to be informed by one’s faith.72 But unlike Protestantism in general, the Presbyterian Church generally opposes euthanasia, but leaves open the possibility of its use in extreme circumstances.73

Exhibit D contains a form of Presbyterian advance directive.

72 Presbyterian Church (USA), Minutes 201st Gen. Ass., Part I: Jour. at 625 (Louisville: Office of the Gen. Ass., 1989).73 Coleson, Contemporary Religious Viewpoints on Suicide, supra note Error: Reference source not found, at 53.

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EXHIBIT A: TERMINOLOGY

1. Artificial nutrition and hydration (or tube feeding) supplements or replaces ordinary eating and drinking by giving nutrients and fluids through a tube placed directly into the stomach, the upper intestine, or a vein.

2. Brain death, according to the Uniform Determination of Death Act,74 occurs when a person permanently stops breathing, the heart stops beating and "all functions of the entire brain, including the brain stem" cease. Determining brain death is a complex process that requires dozens of tests to make sure doctors come to the correct conclusion. To attempt to eliminate variability in the application of the standards and to create more uniform results, the American Academy of Neurology issued new guidelines that require a checklist of approximately 25 tests and criteria.75 Nevertheless, an individual may be determined legally brain dead, yet not be dead according to the criteria of the religion to which he or she adheres.

3. Capacity refers to an individual's ability to understand the significant benefits, risks, and alternatives to proposed health care and to make and communicate a health care decision. The term is frequently used interchangeably with competency but is not the same. Competency is a legal status imposed by the court.

4. Cardiopulmonary resuscitation is a group of treatments used when someone’s heart and/or breathing stops. Cardiopulmonary resuscitation (CPR) is used in an attempt to restart the heart and breathing. Electric shock and drugs also are used to restart or control the rhythm of the heart.

5. Do not resuscitate order is a physician’s order written in a patient’s medical record indicating that health care providers should not to attempt CPR in the event of cardiac or respiratory arrest. In some regions, this order may be transferable between medical venues. Also called a DNR (do not resuscitate) order, a No CPR order, a DNAR (do not attempt resuscitation) order, and an AND (allow natural death) order.

6. Life-sustaining treatment includes medical procedures or surgical interventions that use mechanical or other artificial means to sustain, restore, or replace a vital function, which would serve only to prolong the process of dying. Life-sustaining treatments include CPR, mechanical ventilation, artificial nutrition and hydration, dialysis, and certain other treatments. “Life-sustaining treatment” does not include the administration of medication or the performance of any medical or surgical intervention deemed necessary solely to alleviate pain.76

74 NCCUSL, Uniform Determination of Death Act (1981), www.nccusl.org/Act.aspx?title=Determination of Death Act. In 1979, the American Medical Association created its own Model Determination of Death statute. Many state legislatures adopted statutes based on one or another, or an amalgamation of, the existing models. See, e.g., New Jersey law, which provides that a person is dead if there is an “irreversible cessation of all functions of the [person’s] entire brain, including the brain stem.” N.J.S.A. 26:6A-3.75 Eelco F.M. Wijdicks, MD, PhD, et al., Evidence-based guideline update: Determining Brain Death in Adults Report of the Quality Standards Subcommittee of the American Academy of Neurology, 74(23) Neurology 1911 (June 8, 2010), www.neurology.org/content/74/23/1911.full.html (accessed May 17, 2011).76 RCW 70.122.020(5).

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7. Mechanical ventilation is treatment in which a mechanical ventilator supports or replaces the function of the lungs. Mechanical ventilation often is used to assist a person through a short-term problem or for prolonged periods in which irreversible respiratory failure exists due to injuries to the upper spinal cord or a progressive neurological disease.

8. Palliative care, also called “comfort care,” a comprehensive approach to treating serious illness that focuses on the physical, psychological, and spiritual needs of the patient. Its goal is to achieve the best quality of life available to the patient by relieving suffering, controlling pain and symptoms, and enabling the patient to achieve maximum functional capacity. Respect for the patient's culture, beliefs, and values is an essential component.

9. Patient Self-Determination Act (PSDA) is an amendment to the Omnibus Budget Reconciliation Act of 1990. The law requires most United States hospitals, nursing homes, hospice programs, home health agencies, and health maintenance organizations (HMOs) to provide to adult individuals, at the time of inpatient admission or enrollment, information about their rights under state laws governing advance directives, including: (1) the right to participate in and direct their own health care decisions; (2) the right to accept or refuse medical or surgical treatment; (3) the right to prepare an advance directive; and (4) information on the provider’s policies that govern the utilization of these rights. The act prohibits institutions from discriminating against a patient who does not have an advance directive. The PSDA further requires institutions to document patient information and provide ongoing community education on advance directives.

10. Permanent unconscious condition is an incurable and irreversible condition in which the patient is assessed within reasonable medical judgment as having no reasonable probability of recovery from an irreversible coma or a persistent vegetative state.77

11. Persistent vegetative state is a clinical condition of complete unawareness of the self and the environment accompanied by sleep-wake cycles with either complete or partial preservation of hypothalamic and brainstem autonomic functions. The persistent vegetative state is a vegetative state present at one month after acute traumatic or non-traumatic brain injury, and present for at least one month in degenerative/metabolic disorders or developmental malformations. A persistent vegetative state (PVS) can be diagnosed on clinical grounds with a high degree of medical certainty in most adult and pediatric patients after careful, repeated neurological examinations by a physician competent in neurological function assessment and diagnosis. A PVS patient becomes permanently vegetative when the prognosis of irreversibility can be established with a high degree of clinical certainty (i.e., when the chance of regaining consciousness is exceedingly rare).78

12. Qualified patient is an adult diagnosed in writing to have a terminal condition by the patient's attending physician, who has personally examined the patient, or a patient who is diagnosed in writing to be in a permanent unconscious condition in accordance 77 RCW 70.122.020(6).78 See The Multi-Society Task Force on PVS, Medical Aspects of the Persistent Vegetative State, 330 N. Engl. J.Med., Part II 1499 (May 26, 1994), www.nejm.org/doi/full/10.1056/NEJM199405263302107#t=article for a more thorough discussion of the expected outcomes of a persistent vegetative state due to various causes.

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with accepted medical standards by two physicians, one of whom is the patient's attending physician, and both of whom have personally examined the patient.79

13. Terminal condition means an incurable and irreversible condition which, within reasonable medical judgment, will cause death within a reasonable period of time in accordance with accepted medical standards, and where the application of life-sustaining treatment would only prolong the process of dying.80

14. Withholding or withdrawing treatment: Forgoing or discontinuing life-sustaining measures.

79 RCW 70.122.020(8).80 RCW 70.122.020(9).

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EXHIBIT B: MODIFICATIONS TO THE DIRECTIVE FOR ORTHODOX JUDAISM

Short Form:

In the absence of my ability to give directions regarding the use of such life-sustaining treatment, it is my intention that this directive shall be honored by my family and physician(s) as the final expression of my legal right to refuse medical or surgical treatment and I accept the consequences of such refusal; provided, however, that no decisions hereunder shall be inconsistent with Jewish religious law and, if deemed appropriate, my physicians shall consult with an Orthodox Rabbi in arriving at any decision. If another person is appointed to make these decisions for me, whether through a durable power of attorney or otherwise, I request that the person be guided by this directive and any other clear expressions of my desires.

Slightly Longer Form:

If I (i) have an incurable or irreversible, severe mental or severe physical condition; (ii) am in a state of permanent unconsciousness or profound dementia; (iii) am severely injured; and in any of these cases there is no reasonable expectation of recovering from such severe, permanent condition, and regaining any meaningful quality of life, then in any such event, it is my desire and intent that heroic life-sustaining procedures and extra-ordinary maintenance or medical treatment be withheld to the extent permissible in accordance with Orthodox Jewish religious doctrines and beliefs (Halacha). It is not my desire to prolong my life through mechanical means where my body is no longer able to perform vital bodily functions on its own, and where there is little likelihood of ever regaining any meaningful quality of life. The condition and degree of severity and permanence contemplated by this provision are of such a nature and degree of permanent illness, injury, disability or accompanied by pain such that the average person might contemplate the decisions addressed herein (regardless whether such person would make the decisions I have made herein). I direct all physicians and medical facilities in whose care I may be, and my family and all those concerned with my care, to refrain from and cease extraordinary or heroic life-sustaining procedures and artificial maintenance and/or medical treatment.

Even Longer Form:

Jewish Law to Govern Health Care Decisions: It is my desire, and I hereby direct, that all health care decisions made for me (whether made by my agent, a guardian appointed for me or any other person) be made pursuant to Jewish law and custom as determined in accordance with the Orthodox interpretation and tradition. Without limiting in any way the generality of the foregoing, it is my wish that Jewish law and custom should dictate the course of my health care with respect to such matters as the performance of cardio-pulmonary resuscitation if I suffer cardiac or respiratory arrest; the performance of life-sustaining surgical procedures and the initiation or maintenance of any particular course of life-sustaining medical treatment or other form of life-support maintenance, including the provision of nutrition and hydration; and the criteria by which death shall be determined, including the method by which such criteria shall be medically ascertained or confirmed.

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Ascertaining the Requirements of Jewish Law: In determining the requirements of Jewish law and custom in connection with this declaration, I direct my agent to consult with the following Orthodox Rabbi and I ask my agent to follow his guidance: (insert Rabbi’s contact information).

If such Orthodox Rabbi is unable, unwilling or unavailable to provide such consultation and guidance, then I direct my agent to consult with, and I ask my agent to follow the guidance of, the following Orthodox Rabbi: (insert Rabbi’s contact information).

If both of these Orthodox Rabbis are unable, unwilling or unavailable to provide such consultation and guidance, then I direct my agent to consult with, and I ask my agent to follow the guidance of, an Orthodox Rabbi referred by the following Orthodox Jewish institution or organization: (insert name of organization and contact information).

If such institution or organization is unable, unwilling or unavailable to make such a reference, or if the Orthodox Rabbi referred by such institution or organization is unable, unwilling or unavailable to provide such guidance, then I direct my agent to consult with, and I ask my agent to follow the guidance of, an Orthodox Rabbi whose guidance on issues of Jewish law and custom my agent in good faith believes I would respect and follow.

Direction to Health Care Providers: Any health care provider shall rely upon and carry out the decisions of my agent, and may assume that such decisions reflect my wishes and were arrived at in accordance with the procedures set forth in this directive, unless such health care provider shall have good cause to believe that my agent has not acted in good faith in accordance with my wishes as expressed in this directive. If the persons designated in section 1 above as my agent and alternate agent are unable, unwilling or unavailable to serve in such capacity, it is my desire, and I hereby direct, that any health care provider or other person who will be making health care decisions on my behalf follow the procedures outlined above in determining the requirements of Jewish law and custom. Pending contact with the agent and/or Orthodox Rabbi described above, it is my desire, and I hereby direct, that all health care providers undertake all essential emergency and/or life sustaining measures on my behalf.

Post-Mortem Decisions: It is also my desire, and I hereby direct, that after my death, all decisions concerning the handling and disposition of my body be made pursuant to Jewish law and custom as determined in accordance with strict Orthodox interpretation and tradition. For example, Jewish law generally requires expeditious burial and imposes special requirements with regard to the preparation of the body for burial. It is my wish that Jewish law and custom be followed with respect to these matters. Further, subject to certain limited exceptions, Jewish law generally prohibits the performance of any autopsy or dissection. It is my wish that Jewish law and custom be followed with respect to such procedures, and with respect to all other post-mortem matters including the removal and usage of any of my body organs or tissue for transplantation or any other purposes. I direct that any health care provider in attendance at my death notify the agent and/or Orthodox Rabbi described above immediately upon my death, in addition to any other person whose consent by law must be solicited and obtained, prior to the use of any part of my body as an anatomical gift, so that appropriate decisions and arrangements can be made in accordance with my wishes. Pending such notification, and unless there is specific authorization by the Orthodox Rabbi consulted in accordance with the procedures

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outlined in section 3 above, it is my desire, and I hereby direct, that no post-mortem procedure be performed on my body.

Incontrovertible Evidence of My Wishes: If, for any reason, this document is deemed not legally effective as a health care proxy, or if the persons designated in section 1 above as my agent and alternate agent are unable, unwilling or unavailable to serve in such capacity, I declare to my family, my doctor and anyone else whom it may concern that the wishes I have expressed herein with regard to compliance with Jewish law and custom should be treated as incontrovertible evidence of my intent and desire with respect to all health care measures and post-mortem procedures; and that it is my wish that the procedure outlined above should be followed in determining the requirements of Jewish law and custom.

I desire to make anatomical gifts that will take effect at my death for the: [ ] sole purpose of transplant to save another person’s life or [ ] sole purpose of transplant to save the life of a family member of any needed organs and tissues, where such gifts are permissible in accordance with Orthodox Jewish law.

Pregnancy. If I am pregnant, my life shall have precedence over the life of my fetus if a choice must be made between my survival and the survival of my fetus. Any decision to be made hereunder shall be made in accordance with the Jewish religious preference indicated above.

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EXHIBIT C: MODIFICATIONS TO THE CATHOLIC HEALTH CARE DIRECTIVE

God is the creator and preserver of life. Since life is a journey from God and back to God with death as part of that journey, it follows that life is sacred, but not an ultimate value. From this perspective, death is not a failure or an absolute evil, but the culmination of the journey.

My Christian heritage holds that life is the gift of a loving God. I see life as a sacred trust over which I can claim stewardship, but not ownership. Therefore, I direct my Agent to make decisions based on my Agent's assessment of my personal wishes, moral values and religious beliefs as stated below or as he/she otherwise knows: (insert your personal wishes or moral religious beliefs). It is my wish that my Agent make health care decisions for me which are consistent with the teachings of the Catholic Church and based upon my profound respect for life and my belief in eternal life. It is my intention that my attending physicians, and the health care institution where I am a patient, provide me with proper medical treatment and care including but not limited to:

1. CPR. Cardiopulmonary resuscitation and the performance of all other medical procedures, techniques, and technologies, including surgery, all to the extent necessary to correct, reverse, or alleviate life-threatening or health-impairing conditions, or complications arising from those conditions.

2. Nutrition and Hydration. Nutrition and hydration when they are capable of sustaining life, as long as this is of sufficient benefit to outweigh the burdens involved to me.

3. Comfort Care. Standard comfort care appropriate for any patient suffering from illness, injury, or disease; provided, however, while I wish pain control to be administered, I also wish consideration be given to my wish for consciousness prior to death to be able to participate in accepting Holy Communion and making a final confession of my sins, as well as participating in certain prescribed prayer services. I desire appropriate pain-alleviating medicine to make me comfortable, except if it would actively hasten my death. ([Some individuals may want to include the following] Notwithstanding the foregoing, if death is imminent, in spite of the means that might prolong my life, and if I have received Holy Communion, made a final confession of my sins and participated in certain prescribed prayer services as described above, I direct that treatment be forgone or withdrawn that will only maintain a precarious and burdensome prolongation of my life, unless those responsible for my care deem that there are special and significant reasons why I should continue to receive such care.)

4. If I am pregnant. I direct that my life shall not be given precedence over the life of my unborn child if a choice must be made between my survival and the survival of such unborn child. I direct that no action be taken that could lead to my death or the death of my unborn child, even if such action is necessary to save my life or my unborn child.

5. No Heroic Measures. [NOTE: Some of the following may conflict with the provisions above and will need to be modified according to the wishes of the principal.]

a. If I (i) have an incurable or irreversible, severe mental or severe physical condition; (ii) am in a state of permanent unconsciousness of profound dementia; (iii) am severely injured;

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and in any of these cases there is no reasonable expectation of recovering from such severe, permanent condition, and regaining any meaningful quality of life, then in any such event, it is my desire and intent that heroic life-sustaining procedures and extra-ordinary maintenance or medical treatment, as understood in the moral tradition of the Catholic Church, be withheld and withdrawn.

b. It is not my desire to prolong my life through mechanical means where my body is no longer able to perform vital bodily functions on its own, and where there is little likelihood of ever regaining any meaningful quality of life. The condition and degree of severity and permanence contemplated by this provision are of such a nature and degree of permanent illness, injury, disability or accompanied by pain such that the average Catholic person might contemplate, in the moral tradition of the Catholic Church, the decisions addressed herein (regardless whether such person would make the decisions I have made herein).

c. In any such event, I direct all physicians and medical facilities in whose care I may be, and my family and all those concerned with my care, to refrain from and cease extraordinary or heroic life-sustaining procedures and artificial maintenance and/or medical treatment, as understood in the moral tradition of the Catholic Church. The procedures and treatment to be withheld and withdrawn include, without limitation, surgery, antibiotics, cardiac and pulmonary resuscitation, ventilation or other respiratory support.

6. Organ Donation. I am (not) willing to donate any organs that may help others.

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EXHIBIT D: PRESBYTERIAN ADVANCE DIRECTIVE/AFFIRMATION OF LIFE 81

To my family, friends, physician, lawyer, and clergyman: I believe that each individual person is created by God our Father in love and that God retains a loving relationship to each person throughout human life and eternity. I believe that Jesus Christ, lived, suffered, and died for me and that his suffering, death, and resurrection prefigure and make possible the death- resurrection process which I now anticipate. I believe that each person’s worth and dignity derives from the relationship of love in Christ that God has for each individual person and not from one’s usefulness or effectiveness in society. I believe that God our Father has entrusted to me a shared dominion with him over my earthly existence so that I am bound to use ordinary means to preserve my life but I am free to refuse extraordinary means to prolong my life. I believe that through death life is not taken away but merely changed, and though I may experience fear, suffering, and sorrow, by the grace of the Holy Spirit, I hope to accept death as a free human act which enables me to surrender this life and to be united with God for eternity.

Because of my belief I request that:

1. I be informed as death approaches so that I may continue to prepare for the full encounter of Christ through the help of the Sacraments and the consolation and prayers of my family and friends. I request that, if possible, I be consulted concerning the medical procedures that might be used to prolong my life as death approaches. If I can no longer take part in decisions concerning my own future, and there is no reasonable expectation of my recovery from physical and mental disability, I request that no extraordinary means be used to prolong my life.

2. Though I wish to join my suffering to the suffering of Jesus so I may be united fully with him in the act of death-resurrection, that my pain, if unbearable, be alleviated. However, no means should be used with the intention of shortening my life.

3. Because I am a sinner and in need of reconciliation and because my faith, hope, and love may not overcome all fear and doubt, that my family, friends and the whole Christian community join me in prayer and mortification as I prepare for the great personal act of dying.

4. After my death, my family, my friends, and the whole Christian community pray for me and rejoice with me because of the mercy and love of the Trinity, with whom I hope to be united for all eternity.

Signed _______________________ Date _________________

81 Adapted from In Life and Death We Belong to God, Presbyterian Publishing Corp. (1995).

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