Dr. Roxanne Dryden-Edwards is an adult, child, and adolescent psychiatrist. She is a former Chair of the Committee on Developmental Disabilities for the American Psychiatric Association, Assistant Professor of Psychiatry at Johns Hopkins Hospital in Baltimore, Maryland, and Medical Director of the National Center for Children and Families in Bethesda, Maryland.
Melissa Conrad Stöppler, MD, is a U.S. board-certified Anatomic Pathologist with subspecialty training in the fields of Experimental and Molecular Pathology. Dr. Stöppler's educational background includes a BA with Highest Distinction from the University of Virginia and an MD from the University of North Carolina. She completed residency training in Anatomic Pathology at Georgetown University followed by subspecialty fellowship training in molecular diagnostics and experimental pathology.
What are the legal issues associated with dying and death?
In order to appreciate the legal aspects of death and dying, it may help to
understanding death and the process of dying. In order to declare (pronounce) a
person as having died, a physician performs a physical examination to assess
that the person shows signs of death, such as the absence of breathing and
heartbeat, and the individual does not respond in any way to pain. The doctor then completes a
death certificate, which indicates the name, date of birth, and date of death, as
well as the location of death and its immediate cause, like stopped breathing
(respiration) or heart (cardiac) functioning and the medical condition that is
thought to have resulted in the cause of death (for example, infection, cancer,
diabetes).
Consulting with a legal expert, such as an attorney, is advisable when either
planning for or managing the legal matters associated with a death. Some of
the major legal issues involved with dying include the person's right to have
informed consent to receive or refuse treatment, advance directives,
establishing a living will, and making funeral arrangements, if desired.
Informed consent, which is required by law for every patient or patient's
guardian to give, is the responsibility of treating practitioners to provide
that opportunity to patients. It involves the doctor or other health professional explaining to the
patient or patient's legal guardian the options for treatment of whatever
condition from which the individual suffers, the possible benefits as well as
risks for each treatment, and why the health professional may be recommending
one treatment over another. Furthermore, it is the responsibility of the
professional to let their patient know that they have the right to choose
whatever treatment they want or to choose to refuse treatment. Particularly when
discussing chronic or terminal illness, conditions over which there is little
control over the ultimate outcome of care provided, having the individual and
his or her family feel as much control over their treatment options as possible
is of great importance.
Advance directives are those decisions an individual would like to express
to his or her family and treating professionals prior to potentially becoming no
longer able to communicate their wishes prior to death. Examples of advance
directives include what, if any forms of life support the individual would like
to receive to maintain their life, as well as what "heroic" or aggressive
interventions, if any, they would like made immediately should their heart or
breathing stop. Getting food and liquids through a tube, having their breathing
or heart rate performed by a machine, and opting for palliative care (care that will
address pain and otherwise make them comfortable rather than try to cure them)
are choices a person often considers in terms of what they want done or not done
to maintain their life. In the event that the individual expresses a desire to
have no heroic or aggressive medical interventions made should their heart beat
or breathing stop, a do not resuscitate order (DNR) is indicated in his or her
medical chart. Opting for such an order is by
no means a request to stop all medical treatment. In other words, managing any
condition other than actual loss of life (for example, infections, anemia) will
continue. Another important example of an advanced directive is whether or not
the dying individual would like to be considered as a possible organ donor.
In order to have their medical and financial wishes carried out, it is
important for individuals to name a health proxy, someone trusted to make
decisions that are in keeping with the individual's in the event that those
wishes are unknown and the person can no longer express his or her wishes. In
order to formally appoint a health proxy, an attorney must write a durable power
of attorney, the legal document appointing the health proxy. In addition to
having that document signed, witnessed and notarized, a copy of it must be
placed in the individual's medical chart. Similar to the medical power of
attorney, a durable power of attorney of finances can be helpful to establish
who would be in charge of the person's finances if she or he were living but
unable to be in charge of their own financial matters. Last but not least, if
the individual has any strong preferences regarding a funeral or whether his or
her remains are buried or cremated, making those wishes known in writing can
prevent placing the burden of those decisions on surviving family members, who
may struggle with agreeing on these issues, particularly as they grieve the loss
of their loved one. As painful as it is to watch a loved one die and as
difficult as it may be to talk about their death with them before it happens,
many are the families who suffer even more than need be because steps are not
taken to address these important legal issues.
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