An important component of estate planning is the Advanced Medical Directive, sometimes referred to as the Living Will. The importance of a carefully drafted, halachically-correct Advanced Medical Directive cannot be overstated.
First a little background. In 1990, the Supreme Court of the United States, in the case of Cruzan v. Director Miss Dept. of Health, established the constitutional right to direct one’s own medical treatment. The Cruzan case was quickly picked up under the banner of protecting the “right to die,” defining the right to refuse medical treatment. It should be noted that while the banner of “right to die” was the most typical framework for discussion, the Supreme Court also established the “right to live.”
Here are sample provisions of an Advanced Medical Directive:
Primary Instructions: It is my desire and I hereby direct that all health care decisions made for me to be made pursuant to Jewish law and custom as determined in accordance with strict Orthodox Jewish interpretation and tradition (hereinafter sometimes referred to as “Halacha”). By way of example, and without limiting in any way the generality of the foregoing, it is my wish that Halacha should dictate the course of my health care with respect to such matters as the performance or nonperformance of cardiopulmonary resuscitation if I suffer cardiac or respiratory arrest; the initiation or discontinuance of any particular course of medical treatment or other form of life sustaining procedure, including artificially administered nutrition and hydration and the method and timing of determination of death.
Halacha Guidance: My agent, if any is then serving, or the health care provider, shall first consult with and shall follow the guidance of Rabbi _____, if available, but if not, then Rabbi _____, whose decision and guidance on all issues of Halacha shall be binding as if I had so specifically provided. Pending contact with my agent and/or the said Rabbi, I direct my health care providers to undertake all essential emergency measures on my behalf and I direct that no autopsy or other postmortem procedure be performed on my body.
As States began to enact statutory authority, the focus broadened. For example, if an individual has a right to direct his own medical treatment, may a surrogate decision maker have the same right? That is, may an individual designate another to make medical decisions on his behalf, if he is unable to make decisions on his own? What happens if there are no decision-makers designated? How are decisions to be made? Should a committee of providers be granted authority to make medical decisions affecting life-and-death? What are the priorities amongst competing family members? What are proper considerations in making such decisions? Where does religious preference fall within the order of priority? New phrases and new concepts were advanced. Allocation of resources, quality of life, do-not-resuscitate availability for transplant are concepts that became part of the conversation and consideration in the enactment of legislation.
Needless to say, any person who lives his life in accordance with Halacha would wish for medical decisions and end-of-life considerations to reflect their Halachic standards. The Advanced Medical Directive must be tailored to meet one’s goals and desires, both legal and practical. Generally, there are eight areas of focus when considering a Medical Directive:
1) Selection of a surrogate decision-maker or health care agent. One must give consideration to whom they choose as their agent, recognizing that a fair amount of discretion will be vested in the agent, who will be called upon to make decisions in times of emotional stress and trauma. Typically, individuals designate their spouse with their children as alternates. It is not necessary, however, for a family member to be the designated agent. Often, people are concerned about the ability of those closest to them to make appropriate decisions. If multiple agents are to be designated, you must decide if they all must agree, or may decisions be made by a majority, or may any one act alone. Finally, if there are to be agents designated, consider the designation of a successor or backup agent.
2) Choice of rabbinic authority. It is suggested that this may be one of the more important provisions of an Advance Medical Directive. As in many areas of Halacha, there may be different approaches resulting in different conclusions in any given case. Granting to two children the authority to make a decision may result in each one asking direction from their own personal rabbinic authority, resulting in opposite conclusions. Not only does this create confusion and uncertainty, but it may not reflect the intent and the life standard of the patient. By designating the rabbinic authority, one can bring a level of clarity and eliminate much confusion in the process.
3) HIPAA authorization. Generally, the agent designated in an Advanced Medical Directive is deemed to be the “personal representative” or individual entitled to access to medical information about a patient. If an individual chooses one or more of his children to serve as the agent, consideration should be given to include a specific authorization for each child to have access to medical information even if not designated as the health care agent. It is both frustrating to a child and often a source of animosity if a child is denied medical information especially if all such information has to be filtered through a sibling. To avoid such potential for family dispute and to provide that each child has such important access, the HIPPAA provisions of the Advanced Medical Directive should include all children.
4) Health care agent’s discretion. The typical Medical Directive defines three circumstances; specifically, (i) a terminal condition, (ii) a persistent vegetative state, and (iii) an end-stage condition. In each case, one has the ability to state a preference. Those preferences need to conform to Halachic standards. Generally, there are two options. They are: (a) to extend life using all available interventions that are permitted by Halacha; or (b) to keep the patient comfortable and allow natural death to occur without medical intervention unless required by Halacha.
According to most Halachic standards, if one is unable to receive nutrition or hydration (food or water) naturally, one must be provided with nutrition and hydration by other medical means.
An agent’s discretion to use his or her judgment should be modified by requesting the agent to consider conversations that he may have had with you, religious and other beliefs and values, personality, and how one has handled medical and other important issues in the past.
5) Mental health issues. It should be noted that the standard statutory Medical Directive does not authorize certain treatments dealing with mental issues. If there is a real potential for the need for such services, such provision should be considered and specifically involved.
6) Effective date. The effective date of a Medical Directive may be upon execution or upon disability. It is generally recommended that the document be effective upon execution. If there is concern that the agent may utilize the power when not otherwise appropriate, choose a different agent. To require that there be a finding of disability before the document is valid, can often minimize the effectiveness and the ability of the agent to protect the rights and desires of the patient.
7) Organ and body donation. A major thrust in today’s world is making one’s organs available for transplantation. The propriety of this is a matter of substantial Halachic conversation and dispute, and one should therefore have a discussion with one’s own Rav.
8) Funeral and burial arrangements. While not mandatory, a Medical Directive provides an opportunity to state a preference for burial and funeral arrangements, including any specific instructions that one might wish. The law has expanded the definition of funeral expenses to allow for transportation and accompaniment of a body for burial. Therefore, for example, if one wishes to be buried in Israel and have his family members accompany the body, with a proper will, provision those expenses will be deemed deductible for estate tax purposes.
The Advanced Medical Directive is a powerful and important document that requires consideration and planning. The purpose of this article is not to provide Halachic or legal advice. Rather, it is intended to bring to your attention some of the issues which still require your consideration and consultation with appropriate authorities.
