American Journal of Law & Medicine

Swing low, sweet chariot: abandoning the disinterested witness requirement for advance directives.

I. INTRODUCTION

Advances in medical technology over the past several decades have made it possible to increase life long past the point where many patients would otherwise suffer a natural death. (1) In the past, the most common causes of death were abrupt killers such as tuberculosis, pneumonia, and injuries. (2) Now the average American can expect to spend the final two years of life too disabled to perform even the routine activities of life unassisted. (3) Thousands of people also languish in irreversible comas or persistent vegetative states due to illness or injury. (4) Meanwhile, the ranks of the elderly can be expected to burgeon as Baby Boomers approach retirement age (5) and the number of people treated with life support technology (alternatively described as "life-preserving" and "death-prolonging") will rise accordingly. The conventional wisdom is that most people would like to avoid such treatment, preferring to die with dignity. Advance directives ostensibly enable people to avoid this fate, by expressing their treatment decisions in advance (a "living will"), or by designating someone they trust to make treatment decisions for them (a "durable power of attorney for health care"). Relatively few people, however, have executed advance directives. (6) The living wills that are executed often contain ambiguous or contradictory instructions, reflecting a lack of comprehension of the medical issues and treatment possibilities involved. (7) Moreover, medical decision-makers are often unaware of the existence of a patient's living will because they were not involved in the creation of the directives. (8) Many of these problems can be attributed, at least in part, to the complex execution requirements required by state statutes for the execution of a valid advance directive. By imposing unnecessarily burdensome requirements on the process, state legislatures have removed the execution of advance directives from the purview of doctors and families, and shifted it to the legal profession. This shift has impacted the number, quality, and usability of these important planning tools.

The most pernicious technicality in the advance directive execution process is the common requirement of so-called "disinterested witnesses." A fairly representative statute states the requirement as follows:

 
   A health care directive must be signed by the principal and that 
   signature must be verified by a notary public or at least two or 
   more subscribing witnesses who are at least eighteen years of 
   age.... At least one witness to the execution of the document must 
   not be a health care or long-term care provider providing direct 
   care to the principal or an employee of a health care or long-term 
   care provider providing direct care to the principal on the date 
   of execution. The notary public or any witness may not be, at the 
   time of execution, the agent, the principal's spouse or heir, a 
   person related to the principal by blood, marriage, or adoption, 
   a person entitled to any part of the estate of the principal upon 
   the death of the principal under a will or deed in existence or by 
   operation of law, any other person who has, at the time of 
   execution, any claims against the estate of the principal, a 
   person directly financially responsible for the principal's 
   medical care, or the attending physician of the principal. (9) 

This particular law states, in substance, that an advance directive must either be notarized or signed by two witnesses, at least one of which may not be the patient's health care provider or one of its employees, and neither of which is the patient's attending physician, or his spouse, relative, heir, agent, or creditor, or the one responsible for the medical bills. The laws of thirty-nine states and the District of Columbia require witnesses for advance directives, and prohibit certain parties from serving in that role. Together they represent a dizzying array of permutations of those considered unfit to witness the execution of advance directives. These ill-conceived requirements are premised upon untested notions of conflict of interest and, while well-intentioned, threaten to wreak havoc on the emerging field of advance directive law.

This Note argues for the abolition of the disinterestedness requirement for those who witness the execution of advance directives. The requirement of disinterested witnesses for the execution of living wills is analogous to similar requirements in the law of property wills. Beyond the names, however, the analogy is in fact quite tenuous. And while developments in probate law have undermined the validity of the doctrine in its original context, it has taken root in the field of advance directives, unmitigated by curative doctrines that have shaped modern probate law. (10)

The commonly expressed rationale for the disinterested witness requirement-that it provides a safeguard against duress or coercion by those who have an interest in the declarant's death (11)--is a fallacy. The protection turns out to be not only illusory, but also unnecessary. Instead, the requirement has worked a substantial hardship on patients who want the directives, but are intimidated by their cost and complexity. (12) Where both relatives and health care professionals are disqualified from witnessing, it is difficult for patients to execute a directive during a physician visit, and the opportunity to promote end of life discussions between doctors and patients is lost. (13) Doctors subsequently struggle to interpret directives which were created without their input. (14) Some patients, meanwhile, will never get around to securing the necessary witnesses, and will have no directives at all. Finally, the requirement provides ammunition for opponents of living wills. Unwanted medical care must be continued for months in some cases while courts determine whether statutory requirements have been satisfied. (15) The disinterested witness requirement, as promulgated by many states, operates to thwart substantially the execution and the implementation of living wills, while offering no justifiable benefit.

Section II of this Note discusses the legal background of advance directives, describes the various types of advance directives, and explores the disappointing takeup of the scheme. Section III discusses the origins of the disinterested witness requirement in the law of wills, and developments in probate law which have undermined the validity of the rule. Section IV demonstrates that the requirement does not fulfill the protective function in the execution of advance directives, particularly as applied to heirs, relatives, and health care providers. Section V discusses the particular harms imposed by the disinterested witness requirement: it discourages the use of advance directives, reduces the crucial input of doctors into the formulation of advance directives, and encourages frivolous litigation.

II. LEGAL BACKGROUND OF ADVANCE DIRECTIVES

In Cruzan v. Missouri Dept. of Health, (16) The Supreme Court recognized a 14th Amendment liberty interest in the right to refuse unwanted medical treatment. (17) The court stated, "It cannot be disputed that the Due Process Clause protects an interest in life as well as an interest in refusing life-sustaining medical treatment." (18) This right is not unconditional, but is balanced by a state's interests in the: 1) preservation of life; 2) protection of the interests of innocent third parties; 3) prevention of suicide; and 4) maintenance of the ethical integrity of the medical profession. (19) The State's interest "weakens and the individual's right to privacy grows as the degree of bodily invasion increases and the prognosis dims. Ultimately there comes a point at which the individual's rights overcome the State interest." (20) The narrow holding of the Court was that a state may, but need not, require clear and convincing evidence of an incompetent patient's desire to forego medical treatment before such treatment can be withheld or withdrawn. (21) Following the decision in Cruzan there was a flurry of legislative activity by the states to codify their evidentiary requirements with respect to the treatment preferences of incompetent patients. These so-called "living will statutes" or "natural death acts" generally address the requirements for advance directives, which include living wills and durable powers of attorney for health care, but vary widely from state to state. (22) Congress endorsed the use of advance directives by passing the Patient Self-Determination Act, (23) which requires all health care providers which accept Medicare funding to inform all patients, among other things, of their right to refuse unwanted medical treatment and their right to formulate an advance directive. (24)

The term "advance directive" encompasses several different types of documents. A living will is a document used to express treatment preferences in advance of an incapacitating illness. (25) By executing a living will, a declarant can invoke his right to informed consent by specifying which treatment he is willing to accept, and which treatment he chooses to forego, in the event that an injury or illness renders him unable to communicate his treatment preferences. Most states limit the authority of a living will to withhold or withdraw lifesaving treatment to situations in which the patient is in a persistent vegetative state, or is suffering a condition that is both terminal and irreversible. (26)

A "durable power of attorney for health care" (a proxy or DPAHC), is another mechanism for exerting control over future health care decisions. In executing a DPAHC, an individual appoints someone to make health care decisions for him in the event he is unable to communicate his preferences, or is otherwise incompetent to make decisions. (27) This option relieves the declarant from having to make specific decisions about future medical treatments. Given the many permutations of medical scenarios and treatment options which may be pertinent to a future decision about accepting or rejecting medical treatment, many commentators regard the DPAHC as superior to the living will. (28)

The distinction between the living will and the DPAHC has been blurred by legislation and practice. While some states have separate laws dealing with each document, (29) others address them in the same statute. (30) Some proxies include instructions to the health care decision-maker for dealing with specific medical situations, combining the DPAHC and the living will in one document. The suggested form of some advance directive statutes follows this model document. (31) Several states, meanwhile, specifically legislate the DPAHC, but make no mention of the living will. (32) It has become common practice in these states to execute a DPAHC with specific treatment instructions, but without nominating a health proxy at all. The result is a statutorily recognized living will in the guise of a DPAHC. Thus there are powers of attorney and living wills, there are powers of attorney which are also living wills, and there are powers of attorney which are actually just living wills. The witnessing requirements of a given state usually, apply to any and all of these permutations equally. In this Note I will use the term advance directive when the differences among them are not relevant. Where necessary, I will refer specifically to a living will or a DPAHC.

A small minority of states allow a so-called "oral living will," which involves a declaration of a patient's treatment to his doctor, who then makes an official addition to the patient's medical record. (33) The term "advance directive," as used in this article, does not refer to such a construct. A Do-Not-Resuscitate Order (DNRO) is another advance care planning tool, which, while sharing many of the practical and conceptual features of advance directives, is beyond the scope of this article.

Despite being endorsed by Congress and promoted heavily by doctors, lawyers, and public health agencies, the use of advance directives has not caught on the way many had expected. (34) While many people think that living wills are a good idea, few people go to the trouble of executing them. (35) A survey by The National Council on Aging found that 74% of people polled think that having a living will is very important. (36) A far smaller percentage of people have actually executed one. Estimates of how many people have an advance directive vary widely; a recent survey by the website FindLaw.com, estimated that 36% of Americans have a living will. (37) Meanwhile, the use of advance directives is known to be highly correlated with income, race, and education. In one study of 16,678 decedents, the rate of advance directive use among those with a college education was almost twice the overall average. (38) Of decedents with an income of more than $22,000, 14.5% had advance directives. Of those with income below $5,000, only 7.5% did. (39) The infrequent use of advance directives, and the disproportionately low use by the poor and uneducated, can be traced to the unnecessary complexity of executing the documents. …

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