Up Front and Personal

Affirming Life in Elder Law

by Dianne Lynne Butler, Esq.

How to deal best with the tragedies of life other than to make good come of them? After I graduated from Columbia Law School in 1993, I believed I was destined for a legal career in finance and government. I started fresh out of school at the Federal Reserve Bank of New York and became entrenched in a world of derivatives, foreign exchange, bank regulation and high-level supervisory matters, including the investigation of trades that banks executed with Enron prior to its collapse. As a young 20-something-year-old attorney, I worked hard and enjoyed the multitude of social, cultural and religious activities so readily accessed in New York City. My parents never ceased to encourage me in my career pursuits and loved my decision to live at home until I met the right guy.

Then the planes crashed into the Twin Towers. Only two blocks away, I ducked under my desk when the south tower came down, not knowing what explosive force caused all the black smoke to smother my office window. I walked down the smoke-filled staircase to the lower levels of the building holding a wet cloth over my face to breathe and prayed that I would be able to tell my family that I was okay. I did make it back home on a ferry, not quite as young as I used to be. Shortly afterward, we had our own personal 9/11, the diagnosis of my father with stage-four cancer. What did he say? “The good Lord knows what He is doing.” His illness brought hardship, and everything else took second place as we tended to his needs. My father met the good Lord on Good Friday in 2003.

My father’s illness and 9/11 prompted me to search for a way to use my legal skills to serve the human person in the moment of need. I started to learn about elder law, which focuses on the legal needs of senior citizens, from their estates to their long-term care to their end-of-life decision-making. My experience in working on the Medicaid applications of my grandparents affirmed my decision to change my career. Because they received the assistance of home care aides, my grandparents were able to spend their final years together, well into their 90s.

And so begins my new story, fairly newly married and with my own estate planning, elder law and special needs practice in East Islip on Long Island. Seniors are concerned with unnecessarily losing their homes and spending their savings down on long-term care. Estate planning helps seniors to preserve their assets so that they can leave their legacy to their loved ones. Just as critical an aspect of the practice is ensuring that seniors understand what is in their Health Care Proxies and Living Wills, which implement their wishes for end-of-life medical treatments. In fact, Health Care Proxies are recognized in the New York statutes, but Living Wills are not. The Health Care Proxy allows a person (also known as the principal) to designate a trusted agent to make medical decisions when the principal no longer can do so. The Living Will is optional but is commonly used to make clear the principal’s desire to forego “extraordinary” or “heroic” measures to prolong life.

People of faith believe that they will meet God and have a well-intentioned desire not to unnecessarily prolong the dying process or burden their families. Certainly there is a time to fight for life, as many did on 9/11, and there is a time to let go, as my father did in his final battle with cancer. In my experience, however, people may not fully appreciate the meaning that can be given to the language in their own legal documents, and the results can go beyond what they anticipate at the time they are signed.

For example, a Living Will states: “I do not want any medication if I have a significant physical disability.” Is this person saying that she does not want an antibiotic if she develops pneumonia while she uses a wheelchair due to permanent muscle weakness in the legs? The words “significant physical disability” are open to a wide range of interpretation, and denying medical treatments solely on the basis of disability treads into troublesome ethical territory.

Another Living Will states: “I do not want artificial hydration or nutrition if I have developed substantial and irreversible loss of mental capacity.” This means that advanced dementia can become the sole reason for withholding food and water from this person if he no longer can swallow, which also is ethically troublesome. Water and food are called “artificial hydration and nutrition” when fluids are administered intravenously or food is delivered by a nasal-gastric tube or stomach peg. The social norm is to regard them as medical treatments and to forego them, along with all medical treatments, as an extraordinary measure under pre-defined circumstances. However, because all life depends on food and water, and a person certainly will die within days of not being provided food and water, the circumstances under which they may be withheld should be very carefully defined in a Living Will. If not, the client can be signing a document that welcomes a decision to intentionally dehydrate and starve the client rather than allow death to occur from the disease.

Rule 2.1 of New York’s Rules of Professional Responsibility affirms that is it is proper for an attorney to refer to relevant social, moral, ethical and political considerations in giving advice. The commentary states: “Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied.” As a legal counselor, I have the opportunity to advise my clients of the uniqueness and nuances that can be confronted in medical situations, of the ethical choices entailed in their end-of-life decision-making, and of the critical role that their health care agents and their legal documents play. By helping clients understand how their legal documents can carry out their desire to forego extraordinary measures while promoting the dignity of their own lives, the field of elder law can be life-affirming.