Taxation & Estate Planning

Living Wills

By Joel A. Schoenmeyer

As an estate planning attorney, I tend to think of health directives as a very good thing. I was surprised to learn a few years ago that there are people who dislike powers of attorneys and living wills. For instance, in the wake of the Terri Schiavo case, I read an interview with Professor Robert George of Princeton (the interview is here) in which he objects to living wills. Here's a section of interest:

NRO: As you know, there's some question about what Terri Schiavo's wishes were or would be now. How much should turn on this question?

GEORGE: It is the wrong question. It is pointless to ask whether Terri Schiavo had somehow formed a conditional intention to have herself starved to death if eventually she found herself in a brain-damaged condition.... [I]t is a mistake to assume that people can make decisions in advance about whether to have themselves starved to death if they eventually find themselves disabled. That's why living wills have proven to be so often unreliable. One does not know how one will actually feel, or how one will feel about one's life and the prospect of death, or whether one will retain a desire to live despite a mental or physical disability, when one is not actually in that condition and when one is envisaging it from the perspective of more or less robust health.

Consider the case of a beautiful young woman ? an actress or fashion model perhaps ? who is severely burned in a fire. Prior to actually finding herself in such a condition, she might have supposed ? and even said, if the subject had come up in a conversation ? that she would rather be dead than live with her face grotesquely disfigured. But no one would be surprised if in the actual event she did not try to kill herself by starvation or some other means, and did not want to die.

It's an interesting point, I suppose, although I'm not sure what Professor George means by "unreliable." Have there been a number of people who executed living wills asking for no life-sustaining treatment, were then disabled, and were able to indicate that they did indeed wish to have the treatment? I don't think so. What Professor George really means is, "I want to keep you alive." Is that the state's right, to keep you alive no matter what? These philosophical questions are important, I think. Yet no one wants to discuss these questions, questions like:

-Is health care a human right? If so, are we then obligated to provide health care to every human being in the world?

-If the US provides health care (directly or indirectly) to all Americans, can there be any limits on that care? If I am 95 years old and a treatment costing $500,000 would keep me alive for an extra 3 months, am I entitled to such treatment? If such treatment is denied, is that the equivalent of a "death panel"?

In living will-related news, Will Wilkinson has an interesting take on this issue here.

Full post as published by Death and Taxes Blog on August 31, 2009 (boomark / email).