Medical Aid in Dying And Your Estate Plan

Howard K. KurmanPrincipal, Offit│Kurman

April 12, 2021

PBS will be airing the documentary When My Time Comes this Tuesday, April 13.  The show is about the end-of-life process, including the right of people in some jurisdictions to receive assistance in dying from their doctors.

What is Medical Aid in Dying?

Medical Aid in Dying is a medical practice in which a terminally ill, mentally capable adult with a prognosis of six months or less to live may obtain from a doctor a prescription for a lethal dose of medication that the patient can choose to take in order to end the patient’s life.  The doctor cannot participate in the administration of the medication, only the provision of the prescription.

What are the Requirements?

Each jurisdiction that allows Medical Aid in Dying has its own guidelines.  Generally, though, the following requirements must be met:

  • The person requesting the prescription must be an adult (age 18 or over).
  • The person must be terminally ill.
  • The person must have been given a prognosis of six months or less to live.
  • The person must be mentally capable of making health care decisions.
  • The person must be acting voluntarily.
  • The person must be capable of administering the medication on their own.
  • The person must be a resident of the jurisdiction that allows Medical Aid in Dying.
  • The person’s decision to request a prescription must be an informed decision, including having been given information about all other end-of-life options.
  • The person must be informed that they do not have to take the medication, even if they receive the prescription.

The process of obtaining a prescription usually takes from 15 days to three months and requires a number of visits to the doctor.

Which Jurisdictions have Medical Aid in Dying Laws?

California, Colorado, District of Columbia, Hawaii, Montana, Maine, New Jersey, Oregon, Vermont, and Washington.

If you do not live in one of those jurisdictions, you can still take advantage of their law if you meet the law’s requirements, including becoming a resident of the jurisdiction.

How does Medical Aid in Dying Relate to Estate Plans?

Your estate plan should include an Advance Medical Directive (or similar document under a different name) in which you can name an agent to act on your behalf and set forth your instructions regarding your wishes.  You can include the Medical Aid in Dying option among your instructions.

The agent under your Advance Medical Directive often cannot make decisions for you until you are incapable of making your own health-care decisions.  Since the Medical Aid in Dying laws require you to be capable of making your health-care decisions, your agent cannot make the decision for you to request a prescription for the lethal dose of the medication.  However, if you are mentally capable of making the decision, but perhaps not capable of completing all of the acts needed to obtain the prescription, the agent you name in your Advance Medical Directive can do that for you.  This could include transporting you to a jurisdiction that allows Medical Aid in Dying and establishing you there as a resident.

So, if Medical Aid in Dying is an option that you might want to have, you should review your current Advance Medical Directive to see if the document allows it.  If not, you may want to revisit your Advance Medical Directive.  Of course, if you do not have an Advance Medical Directive at all, this may be a good reason to consider one.

If you have questions about Medical Aid in Dying or any other estate planning matter, contact Brian Hundertmark at: 240.507.1750 and [email protected].