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DEMAND FOR LIVING WILLS RISES IN WAKE OF RIGHT-TO-DIE CASES

THE BALTIMORE SUN

The demand for living wills and their companion, the durable power of attorney, has risen dramatically as more people become aware that their wishes regarding the withholding of life support in the event ofterminal illness may not be honored without the documents.

"Our society says, 'Keep people alive, regardless.' But people are saying, 'I don't want to be kept alive indefinitely just to be kept alive, just to have functioning organs,' " said Dr. Harvey Minchew, a 58-year-old Ellicott City internist who serves on the Howard County General Hospital ethics committee.

"It has become part and parcel of the estate planning process," said Guy B. Maseritz, a Columbia estate lawyer.

The living will, enacted by the Maryland General Assembly in 1985, allows an individual to forgo life-prolonging measures in cases of terminal illness or injury. However, it does not provide for cases of incompetence that are not necessarily terminal, such as brain injury. And it does not address the withholding of food and water through intravenous or other tubes.

A second document, known as a durable power of attorney for health care, allows individuals to name a person who will make health-care decisions for them in the event of an incapacitating illness or injury, such as a "persistent vegetative state." It also may include the individual's specific guidelines for ending forced tube-feeding.

Jonathan E. Greenstein, a tax and estate attorney in Columbia, saidthat within the last two years, about half of his clients have brought up the subject of living wills. When he introduces the idea, he said, they are "overall, inclined to use it."

"Some clients come in and wave it in front of me," said Greenstein, noting that clients don't come to him for the will alone. "It's, 'Oh, by the way, what aboutthis?' "

Recent court cases on patients' rights, publicity surrounding the right-to-die issues, and increased availability of the documents themselves --blank forms can be obtained at doctors' and lawyers' offices and hospitals -- have contributed to the increase in living will requests.

Before the high-profile court cases, "there was hardly any" interest in living wills, Greenstein said. "Once federal cases upheld the will, giving it validity, all the right-to-die groups took it as a rallying point."

Among the most publicized cases was that of Nancy Cruzan, who spent eight years in a coma. The absence of the power of attorney document left her father with no authority to remove life support. After several years of legal wrangling, he convinced the Missouri court of his daughter's wishes, and food and water were withdrawn. She was 33 when she died in December 1990.

Such cases have brought to light how "terribly important it is for the family to know what the person wanted," Minchew said. "It's a tragedy when the relative says, 'I don't know what he wanted.'"

He said manyof his patients see for themselves the necessity of writing the will: "Most anyone with a serious illness can't help but realize that with all the technical advances, they need to take advantage of the law and participate in the decision of whether to use life-sustaining devices."

Minchew has found in the last three years that more older patients approach him about living wills. He attributes the awareness to an aging population and the relatives who must become its caretakers.

Physicians, he said, are pleased with the durable power of attorney and living will. "I'm old enough to have seen physicians feel the total responsibility, correctly or incorrectly. They are relieved that the responsibility is really shared," Minchew said.

When Barbara Harris, information coordinator at the county Office on Aging, began conducting programs on the living will and durable power of attorney in October, she brought information booklets, the living will forms and Columbia lawyer Patricia Storch.

"The state Office on Agingsaid it would be a good idea to consult with an attorney for more detailed use of information. I thought, how will I get them all to an attorney? So I decided to bring one to them," she said.

At the session's end, at least one-third of the attendees fill out the forms, using each other as witnesses and talking to Storch.

(Free forms anda pamphlet explaining the process can be obtained by writing to the Attorney General's Office, Opinions and Advice, 200 St. Paul Place, Baltimore, Md. 21202.)

But Harris argues that the provisions are not just for older people. "It's for anybody who's going to die. Look at Cruzan. How old was she?"

Minchew agreed. He has not seen the same increase in response from younger patients as from older ones.

"In our culture we tend to ignore mortality until we don't have a choice," he said. "When you reach an age and experience aches and pains and the deaths of friends, you really can't avoid it unless you avoidreality."

"I've had a client say, 'I'd rather take my chances,' " Storch said. "They don't realize they're not taking natural chances. They're leaving themselves open where medical personnel will try todo everything to keep the body alive and don't have the authority towithhold anything."

Greenstein found that some clients won't talk about it. "Emotionally, they can't bring themselves to think about it. They just don't believe in pulling the plug. They think there will be new medical advances."

Storch also emphasizes that the problem is "most grievous for young people where the body will live on" in the event of a brain injury.

Storch is trying to muster support for an amendment to the living will that would permit the withdrawal of food and water. Some people, she said, have no one to appoint tospeak for them, as required in the power of attorney document.

Storch modifies the living wills she prepares by adding a statement that her clients assert their constitutional right to abjure food, waterand artificially administered oxygen.

A federal law, which takes effect in November, will require hospitals, nursing homes, hospices, home health-care services and health maintenance organizations that receive Medicare or Medicaid payments to make information available about the documents.

Beth Plavner, senior vice president of operations at Howard County General Hospital, said Maryland hospitals have been providing information for several years.

State law required they establish patient advisory care committees to respond to patients' requests for information and help guide them in making a decision regarding artificial life support when the family and physician cannot.

"But," she adds, "the living will is the last thing on any (incoming patient's) mind. We have to be sensitive to patients. We don't want to force it on them; just make them aware."

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