On October 5th, Governor Jerry Brown signed SB-128, the bill that legalized assisted suicide in California. Called The "End of Life Option Act," Brown stated that he signed the bill because if he found himself dying "in prolonged and excruciating pain" he would find comfort in having the option to end his life. He was swayed by stories such as those of LAPD's Christy O'Donnell.
The bill states that a person who has the mental capacity to make (and communicate) their own healthcare decisions, and has been diagnosed with a terminal disease that will result in death within 6 months, can choose to take life ending drugs.
What impact, if any, will this have on Estate Planning, Elder Law and Long term Healthcare in California?
Let's begin with Estate Planning Documents. A typical Estate Plan in the SF East Bay includes a Medical Power of Attorney - called an Advance Healthcare Directive in the state of California. The Advance Healthcare Directive allows one to specify their healthcare wishes should they become incapacitated. Because a dying individual may only request lethal drugs if they have mental capacity, this document would not be relevant to the new law. To ensure that there is no confusion about this, SB-128 specifies that wills created after the bill goes into effect (January, 2016) CANNOT contain a clause or provision affecting whether a person may opt for an aid in dying drug. The bill also specifies that a will cannot contain provisions for rescinding or withdrawing their option to take lethal medication. In addition, the new law states that any person named as agent or attorney-in-fact by the Health Care Directive does not have the right to make a request for an aid in dying drug on behalf of a patient.
In summary, SB-128 does a solid job of ensuring that there can be no reference to, or statements regarding, the use of such a drug. Furthmore, the individual named as agent or attorney-in-fact cannot make a request for lethal drugs on behalf of another. In this sense, the End of Life Option Act has no direct effect on Estate Planning in the SF East Bay.
The bill does have an effect on three Elder Law issues that involve more complex estate planning issues: Conservatorships, Undue Influence & Elder Abuse, and Long term care planning.
A conservatorship is most often sought for an individual who has limited mental capacity due to illness or disability. As an Elder Law attorney in the East Bay, I assist conservators and conservatees in Contra Costa and Alameda County. Many conservators are given full decision making power in regards to both healthcare and day to day life for conservatees. California's End of Life Option Act specifically states that a conservator MAY NOT make decisions or requests for an aid in dying drug on behalf of a conservatee. Furthermore, the new law states that a prospective guardian or conservator may not seek appointment on the sole basis of the patient's request for the life ending drug.
2. Undue Influence & Elder Abuse
Undue influence is often an issue in financial elder abuse cases within Contra Costa County and the greater East Bay area. Undue influence was redefined by the state of California in 2014 as "excessive persuasion" or coercion which results in a person acting (or not acting) by "overcoming that persons's free will." If undue influence is applied, the final result would be inequitable or unfair, either to the person subjected to undue influence or other relevant persons such as heirs or beneficiaries. An example of undue influence which I have seen in my law practice in Walnut Creek, is a child who convinces an elderly parent to amend their will, cutting out another sibling. Foreseeing potential litigation with regards to undue influence and aid-in-dying drugs, California law makers wrote this passage into SB-128:
Knowingly coercing or exerting undue influence on an individual to request an aid-in-dying drug for the purpose of ending his or her life or to destroy a withdrawal or rescission of a request is punishable as a felony.
This essentially means that if someone suspects a dying individual is being coerced to take the lethal drug by a close family member, friend, or relative, that action would be punishable by law. In addition, if someone destroyed a person's withdrawal of their request for the drug, they could also be convicted of a felony. As it relates to Undue Influence, SB-128 will potentially have an effect on Elder Law in the SF East Bay by creating potential law suits or Elder Abuse litigation.
While SB 128 could create Estate litigation in Contra Costa County if undue influence is suspected, California's End of Life Option Act effectively rules out other potential elder abuse lawsuits in regards to those who "take actions that comply with the bill." This would include doctors, nurses, or other caregivers and family members who are involved in administering the end of life drug. SB-128 states that "if its enacted as written, <they> shall not have those actions used as a cause of action for neglect or elder abuse lawsuits." This should be sufficient to avoid litigation or lawsuits directed at administrators of the drug.
3. Long Term Care & Medi-Cal
An issue raised by opponents of SB-128 and most recently by the LA Times is the possibility of insurance programs, such as Medi-Cal, declining more expensive care in favor or the much cheaper end of life option. The Times article cited a recent case in Oregon State where the government run healthcare program declined to pay for a costly drug that would extend the life of a woman named Barbara Wagner. Wagner came out publicly, revealing that the state sent her a letter suggesting alternatives to the pricey medication, including life ending drugs, which have been legal in Oregon for several years now.
As an Elder Law attorney in the SF East Bay who specializes in Medi-Cal planning, I have seen just how astronomical end of life care can become. With more and more people learning how to avoid paying back Medi-Cal for long term care coverage, there is certainly an incentive for them to keep costs down. But the question remains, would they refuse more costly care because life ending medication has become a legal option? A committee in the state legislature conducted an analysis of savings or costs for Medi-Cal created by SB-128, and determined it would not have a major impact. As of now, Medi-Cal has not announced whether or not it will cover life ending drugs, though the common consensus among healthcare experts seems to be that they will. As for whether or not this will lead to Medi-Cal offering less coverage options for end of life care, only time will tell.
My experience as an Estate Planning and Elder Law attorney in the East Bay, along with several of my esteemed colleagues opinions, leads me to conclude that California's End of Life Option Act will likely have only a minimal to moderate effect on Estate Planning, Elder Law, and Medi-Cal Planning. I believe the impact on families in our East Bay community who opt to use the drug will be more emotional than financial.
If you have questions about Estate Planning, Elder Law, or Medi-Cal, call my Estate Planning & Elder Law Firm in Walnut Creek, CA at 925-322-1763.
Read California’s End of Life Option Act on California’s Legislative Information website.