Right to die statutes - Brittany Maynard

Rod of Asclepius

The story of the late Brittany Maynard has brought to light the contrast between states regarding right-to-die statutes, also known as euthanasia or assisted suicide. These statutes pertain to a third-party assisting with the death of the patient. Typically this entails a doctor administering a lethal dose of toxin, but in a humane fashion, to the patient.

Many people have heard of the late Dr. Kervorkian, a Michigan doctor, who famously assisted patients with ending their lives. Mr. Kervorkian was convicted of second-degree murder for providing a lethal injection to a patient who suffered from Lou Gehrig's disease. Due to his conduct, he was pejoratively labeled "Dr. Death."  

In regards to Ms. Maynard, she was a Californian diagnosed with terminal brain cancer in early 2014. She opted to end her life voluntarily by moving to Oregon which has an assisted suicide statute, titled the "Death with Dignity Act." She did so earlier this November and was only 29 years old.

Occasionally an estate planning client asks if California has a right-to-die statute because they are completing an advanced health care directive. The AHCD instructs the agent on how the patient wants them to handle an end-of-life situation, e.g. the patient is in a persistent vegetative state (a "vegetable"). The answer is a clear no. California does not have a right-to-die statute. California law is explicit in forbidding a health care agent from undertaking any action that might be perceived as assisted suicide. Probate Code 
§ 4653 reads:

"Nothing in this division shall be construed to condone, authorize, or approve mercy killing, assisted suicide, or euthanasia. This division is not intended to permit any affirmative or deliberate act or omission to end life other than withholding or withdrawing health care pursuant to an advance health care directive, by a surrogate, or as otherwise provided, so as to permit the natural process of dying."

Naturally this statute may be changed by the California legislature. So just as assisted suicide in California is illegal in California today, an assisted suicide law can be enacted in the future. A bill to allow assisted suicide in California was introduced in 2004 but failed during the legislative process. I would not be surprised if a legislator introduced such a bill again given Ms. Maynard's case. 

From a constitutional perspective, the U.S. Supreme Court stated that there is no constitutional right to assisted suicide. See Washington v. Glucksberg, 521 U.S. 702 (1997). Hence, assisted suicide is not a given. Rather, if one seeks to utilize assisted suicide, they must live in a state where this is authorized. In Ms. Maynard's case, this meant she had to travel to Oregon from California.

Disposition of a Decedent's Body

Eventually everybody reading this article will have their body disposed in some manner. This is one statement that I can say with absolute certainty. To quote a line from the 1991 movie Bill & Ted's Bogus Journey, "You might be a king or a little street sweeper, but sooner or later you dance with the reaper." Whether by cremation, burial or some other method, one's body will end up somewhere. Consequently, California law has a statutory scheme for deciding who is authorized to dispose of a decedent's body and what they may do.

Although a person may specify their manner of disposal in a will, the common method is to appoint an agent pursuant to an advanced health care directive. Health & S C §7100(a)(1). This agent is authorized to dispose of the body as the decedent instructed them to do so.

Detailing one's burial desires is important for a person who wants to be buried in an unorthodox manner or against the wishes of their family. For example, some religious orders disfavor cremation, whereas others call for a prompt burial following death. If a person wishes to be a contrarian, it is prudent to draft an advance health care directive to ensure that one's wishes are honored. Otherwise, a family feud can ensue which will invariably be messy.

In Cohen v Guardianship of Cohen (Fla App 2005) 896 So2d 950, the surviving spouse petitioned to have her late husband be buried with her in Florida. The couple, Jewish residents of New York when the husband wrote the will, originally called for the husband to be buried in the family  plot, a Jewish-only plot in a New York cemetery. The wife, who was not Jewish, argued successfully that her husband had changed his mind and that he should be buried in Florida with her, presumably in a non-Jewish cemetery. An appellate court agreed with the wife and her late husband was presumably buried in Florida because it found that the late husband had changed his burial desires. 

While Cohen is an extreme example of the length a burial desire can be contested, it nonetheless demonstrates that such an example exists. Hence it is prudent to draft an advance health care directive so that the decedent's agent has the authority to dispose of their remains. Otherwise, an over-zealous family member or friend can try to impose their subjective viewpoint on the subject.

California Notary

A notary is an integral part of the estate planning process. The following 5 questions focus on this issue.

1. What does a notary do?

A notary attests the authenticity of a signature. In regular English, the notary confirms that the person signing the document is who they claim to be by requiring proof of identity.

For example, if John Baker sells his home, he needs to execute a deed. Since the deed requires a notarized signature, John will need to submit proof to the notary that he is John Baker when he signs the deed.

2. What does a notary not do?

Essentially, anything other than attesting the authenticity of a signature.

A notary does not need to be a licensed attorney to become a notary. Unfortunately, many people believe that a notary is automatically an attorney or can give legal advice regardless. The reason being is that in some countries a notary must be an attorney. For example, a notary in Mexico must also be an attorney. The result has been that numerous individuals have been swindled by unscrupulous California notaries who provided legal advice. This can often happen in the immigration field because the clients are unfamiliar with California law and unwittingly heed the advice of the notary. This is most certainly criminal as one cannot practice law without a license. Yes it is a crime to practice law without a license. The law is rather clear on this "no person shall practice law in California unless the person is an active member of the State Bar. Bus & P C § 6125. Moreover, it is likely erroneous given the lack of formal legal training by the notary.

However, many attorneys double as notaries to service their clients more efficiently. In case you are wondering, I am not a notary. I have a colleague who is a notary that handles it for me.  

3. What does a notary need as proof of identity of the signatory?

There are various ways for a notary to verify a signatory's identity. The most common method for this is proof of a driver's license.

4. Why does a notary need to be involved in the estate planning process?

A notary needs to be involved for execution requirements. Various documents require that the person signing the document have their signature be notarized. For example, since a deed must be recorded to give notice to third-parties, a notarized signature is basically required. CC §§1214;1217;1189;1181. Furthermore, a power of attorney and advance health care directive can be executed via a notary. Prob C §§ 4121; 4673-4675. Alternatively, these two documents can also be attested by 2 witnesses. Prob C §§ 4121; 4673-4675.

Of particular relevance is the fact that a revocable trust does not require a notarized signature. Many people assume that a trust must be notarized. This is simply not true. There is no California law that mandates that a trust be notarized. The reason for the notarization is out of custom and because since there are no witness requirements, a notarized signature is proof to third-parties that the settlor, the legal term for a person who creates a trust, actually signed the document. Otherwise, a nefarious character could draft a fabricated trust in order to steal the identity of another person. Thus, the notarized signature reduces the potential for fraud.

5. How much can a notary charge per signature in California?

A notary may charge up to $10 per signature. Govt C § 8211(a). Before you tell me that I'm wrong because you were charged more than that, keep in mind that a notary may also charge the cost of travel.

Advance Health Care Directive

If a person wishes to execute an advance health care directive, they have a number of options to choose from. The following are some examples of fill-in-the-blank forms that are used:

1. Statutory Advance Health Care Directive (Probate Code §4701)

The California probate code provides a template that a person may use for an advance health care directive. It provides instruction on how to complete and execute the document. Since there is no virtually no fee for this form, other than the printing cost, the cost-effectiveness of this option is a definite plus as compared to other options. However, the person will need to self-educate themselves on the topic of medical decision-making. Consequently, I know of no attorney who advises clients to utilize this method.

2. The California Medical Association (CMA) AHCD form.

The CMA produces a form that may be purchased online at its website for a fee. The CMA form is widely-recognized by health-care providers because it is the industry’s version of an AHCD. Hence, the concern of a health care provider not honoring a CMA AHCD dissipates. The form provides very easy to understand instructions on how to complete and execute the document. I personally use the CMA or CHA form for all of my clients.

3. The California Hospital Association (CHA) AHCD form.

The CHA, another trade association, also produces an AHCD. This form is free to download.The principal difference between this form and the CMA form is the clause pertaining to the prolonging of life. For the CMA Form, there are only two situations in which an individual may indicate a preference for not prolonging his or her life, if (1) the person has a terminal condition that will result in death in a matter of months or (2) an irreversible condition that renders the person unable to make decisions and life support is needed to keep the person alive. As for the CHA form, it contains a third option for prolonging life, (3) when the likely risks and burdens of treatment would outweigh the expected benefits.

Of note, the picture is the rod of Asclepius, the Greek symbol for medicine.

Oral Agreements

If given the opportunity to come to an agreement, whether orally or in writing, the easy solution is to make an oral agreement whereas the better solution is to come to a written agreement. First, an oral agreement is inherently difficult to prove. One party will naturally insist that an agreement was reached, while the other party will be inclined to deny the existence of such an agreement. This ultimately distills into the classic “he said, she said” conundrum. Legally speaking, oral agreements or directions in terms of estate planning can run the gamut of consequences. Depending upon the context, an oral agreement or direction may be unenforceable, enforceable or ambiguous. Although in almost all cases the result will be disastrous. The following are some situations in which oral statements come into play in regards to estate planning.

A transaction that attempts to sell real property or an interest therein is void unless in writing. CC §1624(a)(3). For example, if Jack Tripper wishes to gift to Marcy Darcy his interest in Greenacres, this transaction will need to be memorialized in writing, namely a deed. This elementary rule, known as the statute of frauds, is something that every law student learns during their first year. Moreover, it is bar exam season in California, the bar is offered at the end of every July, so I am sure that thousands of potential California attorneys have memorized this law as well. I know I did when I took the bar.

The creation of a joint tenancy in real property requires a written instrument. CC §683(a). Assume that John Tenant purchased a home before marriage. Later on, John married Joy Tenant. John wished that Joy would inherit the property should he predecease her. In order to do this, John would need to execute a written instrument conveying his interest to himself and Joy as joint tenants through a deed. Of note, there would be no property tax implications for this transfer. Rev & T C §62(f).

An oral bequest is void because a will must be in writing. Prob C § 6110. I have heard countless stories of alleged beneficiaries who thought they were cheated out of an inheritance because there was no record of a written will. Instead, the alleged beneficiary had been told by the person, while they were living, that they would inherit a piece of jewelry, furniture or a car when the person died. Disputes involving oral bequests usually pertain to items of sentiment value, such as a family heirloom as opposed to a substantial asset. Nonetheless, people are apt to fight over these objectively inexpensive items because of their emotional attachment to them.

A durable power of attorney must be in writing. Prob C §§4022, 4124. It is important to note the distinction between a durable power of attorney and a regular power of attorney. A durable power of attorney grants an agent the power to act on the principal’s behalf despite the principal’s incapacity. Whereas, a regular power of attorney will become ineffective on the account of the principal’s incapacity. For instance, if Peter executed a durable power of attorney and appointed Albert as his agent, Albert could act on Peter’s behalf if Peter ever lost the capacity to enter into contracts. Conversely, if Peter executed simply a power of attorney, then on Peter’s incapacity, Albert would lose his ability to contract on Peter’s behalf.

The following are examples where oral statements are enforceable in the context of estate planning.

Oral trusts are permitted in California. Estate of Heggstad (1993) 16 CA4th 943. By no means should a person ever consider creating a trust this way. The reason being is that oral trusts are prone to abuse, litigation, fraud and ambiguity.

A person may orally provide individual health care instructions. Prob C § 4670. This is quite peculiar on the surface because one would think that oral health care decisions would be ripe for manipulation or ignorance by sinister individuals. However, the intent behind this law is to provide isolated seniors with the opportunity to plan for future medical emergencies. However, I would be very surprised to see a health care facility make life-altering decisions based upon a patient’s oral directions. Instead, the health care facility most often relies on a written advance health care directive.

Even though one may not orally create a will, a person is permitted to enter into a contract to make a will. Prob C § 21700. In every will that I have written, I included a clause which states that the testator (the author of the will), has not entered into a will contract. The reason being is that the beneficiary of the will contract may sue the testator’s estate if the testator did not comply with the terms of the contract. Yes, even if death, somebody can theoretically hold you accountable for an agreement you entered into, albeit while you were alive. Although an oral will contract seems obscure, it does exist as illustrated by the following case. Stewart v Seward (2007) 148 CA4th 1513.

In early December 1990 a terminally ill Gowisea Koontz entered into an oral agreement with her spouse, Wilmer Koontz, on her death bed. Gowisea agreed that she would not execute a will disposing of her property and would not convert title of their home from joint tenancy to tenancy in common provided that Wilmer agree to execute a will leaving a ½ interest in the family home to Caroline Stewart, Gowisea's daughter and Wilmer's stepdaughter, and the other ½ interest to two grandchildren. This exchange, namely the oral agreement to make a will, was witnessed by several people. Gowisea later passed away on December 12, 1990, intestate. Following Gowisea's death, Wilmer executed a will leaving the entire home to the two grandchildren, leaving nothing to Caroline. Wilmer died on October 26, 2004.

Caroline eventually sued Wilmer’s estate for the inheritance she believed she was owed. Although her claim was denied on appeal due to a timing issue, this case illustrates the consequences of an oral will contract, namely the cost and the time involved. This case was appealed to the California Court of Appeal. To appeal a case from the trial level costs tens of thousands of dollars at a minimum according to attorney colleagues I know. Furthermore, litigation had not concluded until the breaching party, Wilmer, had been dead for 2 ½ years. In short, never make an oral will contract.

Estate Planning Checklist

People often ask me what is estate planning and what does the process entail? Since the former question is a little bit too broad to explain in a blog post, I will attempt to answer the latter question. The following is the process I have used for the past couple of years. 

1. Meet with Clients 

At the initial meeting, I meet with clients to go over the truths, half-truths and outright myths that are associated with estate planning. For example, I am repeatedly told by potential clients that they do not want the government to inherit their estate, which rarely happens, or that a client has heard that a self-settled living trust will shield assets from lawsuits, a complete myth.

We usually go over what is included in the typical estate plan: a trust, a will, a power of attorney and an advance health care directive. Typically a client will insist that they need to write a trust because they saw a flyer for an estate planning seminar that exaggerated the benefits of a living trust. Yet a will, rather than a trust, is perfectly suitable for somebody with a modest estate with no children or a home because of non-probate transfers.

We also go over how long the process will take. I tell clients that I can go as fast as they want me to go. If they provide me with the necessary information I can draft the documents in a morning or an afternoon. For example, one client insisted that I complete everything in 1 week because he was leaving the country for an indefinite period of time. 1 week after coming into my office for that initial consultation, he signed the necessary documents in the morning and boarded a plane in the afternoon, never to be heard from again. No, not really. He was vacationing in the Middle East. 

2. Review Documents 

Once I receive all the necessary information, I am then able to draft all the documents. Of note, most people take on average a month or two to complete my estate planning questionnaire.

I then go over these documents with the clients. I am happy to review each document page-by-page but most clients find reading a will or trust to be quite tedious. For example, upon initial examination, most clients discover that a will or trust is a lengthy and complex document. To date, there has only been one client who has insisted that we go over everything in detail. His occupation was an engineer for reference. I should mention that lacking the desire to read a lengthy document written in legalese is an activity frowned upon by even prominent members of the legal community. Richard Posner, Chief Judge of the 7th Circuit Court of Appeals, a pre-eminent authority on contract law, said that when he received his 100-page home equity loan contract he surprisingly signed it without reading it because he had a life.

Also during this second meeting, I often highlight the distribution clauses in the trusts and wills because that is what concerns people the most typically, namely who will inherit their estate and who is in charge of the distribution. 

3. Sign Documents 

The final stage in the 3-step process is to formally execute the documents. This is by far the shortest meeting of the 3. The entire process takes about 15 minutes. If needed, I arrange for my notary to come to my office or the client’s home so that we have the appropriate parties present. There is no California law which mandates that a trust or certificate of trust be notarized rather it is notarized out of custom. However, a deed transferring the client’s home requires notarization.

Once the signing is complete, I provide the clients with all the executed documents for safekeeping. It is not my policy to safe keep the estate planning documents, instead I tell the clients to keep the items in a secure place such as a safe deposit box. The only document I do retain is the deed to the home. If the home is located in Santa Clara County, I personally record the document because it is a short drive from my office to the County office building. If the home is located outside Santa Clara County, I mail the document to that recorder. Approximately 4-6 weeks later, the recorded deed will be delivered to the client’s home.

Advance Health Care Directive

Here are some commonly asked quesitons about advance health care directives (California's version of a living will):

1. What is an advance health care directive (AHCD)?

A legal document in which a person, the principal, appoints another person, the agent, to act on the principal’s behalf in making medical decisions should the principal ever become incapacitated.

For example, Peter is concerned about his future health because he is a professional race car driver. Peter appoints Allen as his agent to make health care decisions for him should he ever become incapacitated. If Peter ever is in an accident and becomes incapacitated, namely a coma, then Allen would step in and make health care decisions for Peter as dictated by Peter through Allen.

2. Who can write an AHCD?

An adult having capacity has the right to give an individual health care instruction. Prob C §4670. An adult is a person 18 or older. Whereas the Probate Code defines capacity as “a person's ability to understand the nature and consequences of a decision and to make and communicate a decision, and includes in the case of proposed health care, the ability to understand its significant benefits, risks, and alternatives.” Also, there is a rebuttable presumption that a person has capacity to draft an AHCD. Prob C § 4657. The end result is that the vast majority of adults can write an AHCD.

3. Does an AHCD require a notary?

No, an AHCD may be executed via witnesses or a notary. Prob C § 4674. However, the following four types of people cannot serve as witnesses:

a. The patient's health care provider;
b. An employee of the patient's health care provider;
c. The operators or employees of community care facilities and residential care facilities for the elderly; and
d. The agent. Prob C § 4674.

4. Why would I write an AHCD?

It is reasonable to assume that the majority of people would like to be in ultimate control of their medical decisions. By executing an AHCD, a person is afforded the opportunity to make future decisions even if they are not then able to do so.

If a person does not write an AHCD and becomes incapacitated, then a conservatorship of the person is needed in order to make medical decisions for them. In short, a conservatorship of the person is costly, because it is court-supervised, public, for a conservator needs to be appointed through the judicial process and avoidable, since an AHCD can substitute for a conservatorship of the person. In light of this, most people write AHCDs.

5. Who can serve as the agent?

A person 18 or older who has capacity can be appointed as a health care agent. However, the following 3 types generally may not be appointed as agent:

a. The supervising health care provider or an employee of a health care institution where the principal is receiving care; 
b. An operator or employee of a community care facility where the principal is receiving care; and 
c. An operator or employee of a residential care facility for the elderly where the principal is receiving care. Prob C § 4659.

6. If selected, am I obligated to serve as somebody’s agent?

No, a health care agent is free to decline to serve as somebody’s agent. Prob C § 4688.

7. What powers does the agent have?

The agent may make health care decisions for the principal to the same extent the principal could make health care decisions if the principal had the capacity to do so. Prob C §4683. Thus, an agent can grant consent, refuse consent, or withdraw consent to health care for the principal. Prob C §4617.

8. What powers does the agent not have?

The agent does not have the power to commit the principal to a mental health treatment facility or to authorize convulsive treatment, psychosurgery, sterilization or abortion. Prob C §4652.

Furthermore, the agent may not engage in a mercy killing or assisted suicide. Prob C §4653.

9. When does an AHCD become effective?

An AHCD usually becomes effective when the principal loses capacity. Prob C §4682. The principal can make the AHCD effective immediately but no reasonable person does this.

For example, if Peter appoints Allen as his health care agent but has capacity when he makes this appointment, Allen is not allowed to make health care decisions for Peter. However, if Peter were to be involved in a car accident and fall into a coma, he would lose capacity. Allen would then be allowed to make health care decisions for Peter.

10. Does an AHCD automatically expire on death?

Surprisingly an AHCD does not automatically expire on death unlike other power of attorney documents. An AHCD may grant the agent the power to dispose of the remains, authorize an autopsy and donate all or part of the principal's body for transplant, education, or research purposes. Prob C §4683(b).

11. Am I required to write an AHCD?

No, a health care provider cannot require a patient to possess an AHCD before administering treatment. Prob C §4677.

13. Are health care providers required to honor an AHCD?

Yes, a health care provider must comply with an individual health care instruction unless either it is contrary to the policy of the institution, and that policy has been adequately conveyed to the agent or the patient or it requires medically futile care or health care that is contrary to generally accepted standards in the health care community. Prob C §§4733-4735.

14. Can the agent access the principal’s medical records?

Yes, unless limited by the AHCD, the agent has the right to receive information about the principal's medical condition from all treating health care providers, and is authorized to review the principal's medical records and consent to their disclosure. Probate C §4678. 

Durable Power of Attorney

A durable power of attorney for financial management is a legal written document in which a person, the principal, appoints another person, the agent or attorney-in-fact, to serve on their behalf.

For example, Patricia is leaving the country for a vacation and needs to sell her house. Patricia will not be able to sign all the necessary paperwork at closing. Hence, the sale will not go through. However, Patricia appoints Amber to be her agent so that Amber can sign on Patricia's behalf in order to sell her house.

In terms of estate planning, a power of attorney is used to guard against the unexpected incapacity of a person, since your bills will still become due regardless of your physical condition. For example, Patricia is involved in a car accident causing her to fall into a coma. If Patricia lacks a power of attorney, a court-appointed conservator of her estate is needed. For sake of argument, Patricia's conservator is named Charlize. Charlize' duties are to manage and use Patricia's property for both Patricia's benefit and those for whom Patricia is obligated to support, namely children. Prob C § 2401. In short, a conservatorship is public, costly and time-consuming.

Conversely, a power of attorney can accomplish the same objectives of a conservatorship without the need for public intervention, costly expenses or length of time. Thus, estate planning attorneys almost universally include a power of attorney when writing a comprehensive estate plan so as to avoid a conservatorship. Similarly, attorneys write others legal documents to avoid the need for court intervention in other estate planning situations. For instance, a trust avoids the need to probate a trust drafter's estate.

The key when drafting a power of attorney is to make sure it is durable. In that, the power of attorney must contain a statement that the power of attorney shall not be affected by subsequent incapacity of the principal, or shall become effective upon the incapacity of the principal, or similar words. Prob C §4124. If the power of attorney lacks the language required by Prob C § 4124, the agent lacks authority during the principal's incapacity. In our case, if Patricia's power of attorney did not contain the required language of Prob C § 4124, her power of attorney would not be valid should he become incapacitated. Thus, the power of attorney would essentially be a worthless document. Consequently, Patricia would then need a court-appointed conservator of her estate to manage her financial affairs and everybody but Patricia and her family would arguably benefit, the attorney, the conservator, the accountant, etc.

Finally, it should be noted that a power of attorney for financial management only relates to a person's estate, namely their finances. The other legal aspect of an individual is their "person." Decision relating an individual's "person" relate to health care decisions. The legal document used to coordinate an individual's health care decisions with an appropriate agent is called an advance health care directive. Prob C §§4600-4806.   

Advance Health Care Directive (living will)

The name Terri Schiavo invokes a visceral reaction for many Americans. In 1990, Terri Schiavo, then 26 years old, suffered a cardiac arrest that deprived her brain of oxygen for 5 minutes before being resuscitated. The consequential brain damage left Terri in a persistent vegetative state ("PVS"), unable to move, communicate, swallow, feed herself, make choices, think, or feel pain or emotion. She failed to regain consciousness for the rest of her life. Experimental surgery and several years of therapy produced no recovery signs.

During Schiavo's unconsciousness, her fate was the source of seemingly endless, contentious, lengthy and expensive litigation, pitting Terri' husband against Terri's family. Ultimately Terri' husband prevailed, after 7 years of litigation, and Terri's feeding tube was removed by court order for the third and final time on March 18, 2005, and she died on March 31, 2005. An autopsy revealed that no treatment could have reversed the brain damage. Goodnough, Schiavo Autopsy Says Brain, Withered, Was Untreatable, New York Times, June 15, 2005, p A1, col 1.

A California version of Terri Schiavo involved Robert Wendland. Conservatorship of Wendland (2001) 26 C4th 519. In 1993, Robert Wendland, 42 was seriously injured in an automobile accident. Emerging from a coma, paralyzed and brain-damaged, he lived on a feeding tube for 2 years before his wife of 15 years, Rose Wendland, requested permission from California courts to be named his conservator (think parent) and to remove his feeding tube. Robert's physicians indicated that he would likely never recover significantly and that he failed to interact with his environment or attempt to communicate with his family and caregivers. Rose Wendland testified that he had told her before the accident that he would never want to live in a state in which he was completely dependent on others for his care. Before involving the courts, Rose Wendland had submitted the case to the ethics committee of Lodi Memorial Hospital West. This ethics committee voted unanimously that Robert Wendland should be allowed to die.

However, Wendland's mother and sister objected to Rose Wendland's petition and argued that Wendland should be kept alive. Ultimately, the California Supreme Court ruled that the conservator, Rose, needed to show clear and convincing evidence in order to remove the feeding tube, which she could not do. Although, Robert died while the case under submission.

Finally, the most famous end-of-life United States Supreme Court case, Cruzan v Missouri Dep't of Health (1990) 497 US 261, involved a then 25 year old automobile accident victim. The resulting injury left Nancy Cruzan in a PVS as well. The accident occurred on January 11, 1983. The Supreme Court case was not decided until June 25, 1990. Later on, Cruzan's feeding tubes were removed on December 15, 1990 and died 11 days later.

These cases illustrate that end of life decision are not exclusive to the mature community and can drag on for years if not properly anticipated. In response, Californians typically draft an Advance Health Care Directive to prepare for such a situation. The document can spell out what end of life procedures the drafter wants done, (i.e. pull the plug) and can also nominate an agent to make health care decisions on the drafter's behalf should the drafter become incapacitated like Terri Schiavo or Nancy Cruzan. It is a painful but necessary decision to draft an Advance Health Care Directive (known as a living will in some jurisdictions) because the consequences of not drafting are very steep. Furthermore, it is very straight-forward to draft one. Most, if not all people, want to die with some dignity, and an Advance Health Care Directive is the optimum instrument to effectuate that sentiment.