Advanced directives to end the pain of terminal illness within a “living will” became a near future possibility for terminally ill individuals at the end of May this year. Euthanasia has been offered to resident of California, Montana, Oregon, Vermont and Washington) for some time, yet physician assisted suicide continues to be an issue set aside by many state governments unwilling to take on the moral controversy of organized religious groups opposed to such legislation. Thirty-seven (37) U.S states still stand firmly against medically assisted suicide, defining euthanasia under criminal statute; or at minimum codified as an illegal, life-terminating act. At present, New York law classifies the act of intentionally causing or aiding the commission of a suicide of another person as second-degree manslaughter (N.Y. criminal statute 125.15).
A History of “Living Will”
Mid-twentieth century integration of the concept of a “Living Will” within U.S. law was originated by the public policy agenda of the Euthanasia Society of America. Intended to influence public opinion in the interest of legalizing physician-assisted suicide, the Society promoted euthanasia as a treatment solution in the event of medical impairment. Today, the term advanced directive associated with living will formation, also refers to a Durable Power of Attorney for Health Care (DPAHC). Advanced directives now provide instructions for medical treatment, including authorization of euthanasia or physician-assisted suicide in states where it is permitted.
NY Bill A2383: Medical Aid In Dying Act
Passage of the Medical Aid in Dying Act will allow terminally ill patients to end their lives by the New York State Assembly Health Committee, affords individuals diagnosed with terminal illness the option of medically assisted suicide. The sponsors of the Act, New York State Assemblywoman Amy Paulin, D-Scarsdale, and Senator Diane Savino, D-Staten Island laid the groundwork for the bill in Congress. New York Senate Bill A2383 could be signed into law by Governor Andrew Cuomo this year.
Mental Capacity a Roadblock
One of the primary concerns related to passage of the bill is the requisite mental capacity of a terminally ill patient. Informed consent agreements require full mental capacity. Diagnosis of psychiatric or psychological disorders in patients seeking euthanasia, has been a key topic within political debate in recent years.
Capacity may also impact the inclusion of a final wishes document as part of an estate plan. An estate plan may include instructions for funeral and final interment arrangements, as well as the details to coverage of funeral and mortuary costs by a decedent’s insurer.
If the proposed legislation has bi-partisan support, it the Act will inevitably affect estate and trust planning rules. Lessons learned from estate litigation matters in states already permitting physician assisted suicide of terminally ill patients is likely to inform any future New York legislation of new rules related to estate law and probate law.
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Ettinger Law Firm is a licensed New York attorney practice specializing in financial planning and probate litigation. Contact Ettinger Law Firm to schedule a consultation about an estate law related matter.
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