Advising Guardians in End of Life Decision-Making
The Colorado “End of Life Options Act,” also known as Proposition 106, is on the November 8, 2016, ballot in Colorado as an initiated state statute. A “yes” vote supports making assisted death legal among patients with a terminal illness who receive a prognosis of death within six months. A “no” vote opposes this proposal, keeping the prohibition of assisted death in Colorado.
Currently in Colorado, aiding another person in ending his or her life is a crime of felony manslaughter. C.R.S. § 18-3-104. Assisted death is legal in five states: California, Montana, Oregon, Vermont, and Washington. Oregon became the first state to authorize assisted death when voters approved Measure 16 in 1994. Colorado Proposition 106 is modeled on Oregon Measure 16. The Denver Post, “Proposition 106 in Colorado: Everything you need to know about medical aid in dying,” September 24, 2016.
A Guardian appointed under C.R.S. §15-14-301, et seq, has the full authority to make decisions regarding the ward’s support, care, education, health, and welfare. C.R.S §15-14-314(1). The Guardian is tasked with essentially making all medical decisions on behalf of the Ward, including making end of life decisions. Making decisions regarding life sustaining treatments, resuscitation, and when to accept or deny treatment are some of the most difficult decisions family members ever face. Guardians of a dying loved one are often put in the precarious situation where they must balance their statutory duty to act in the ward’s best interest, and with reasonable care, diligence and prudence, with managing familial relationships, opinions, and wishes, limit their own liability regarding their decision-making. Accordingly, practitioners are required to advise their clients who serve as guardian appropriately.
Under any circumstances, a Guardian has the duty to consider the expressed desires and personal values of the ward to the extent they are known to the Guardian. Id. This includes end of life issues. If the ward is able to articulate his or her wishes, the Guardian must consider them. The Guardian must also consider the prior written wishes of the ward, including a previously executed Medical Orders for Scope of Treatment (MOST) form under C.R.S. § 15-18.7-101 et seq. Further, preexisting advance medical directives such as Living Wills and resuscitation orders executed by the ward remain valid unless they were specifically revoked by the Court under C.R.S. § 15-14-316(3). Therefore the Guardian can most likely rely on the directions contained in these documents with some assurance that they are, in fact, considering the true wishes of the ward.
Additionally, a guardian has a duty to provide any preexisting medical directives to healthcare providers pursuant to C.R.S. § 15-18-104. This is an often-overlooked way of insulating a guardian from liability. If a ward’s medical professionals have the directives on file, the guardian not only avoids scrambling to find the documents during a crisis, but in the event of family discord or disagreement on the appropriate course of action, the guardian avoids the appearance of “suddenly” finding documentation that just so happens to support their decision.
Although guardians must share their Ward’s preexisting medical directives with healthcare providers, guardians cannot execute a new medical declaration on behalf of a Ward, other than a resuscitation directive. C.R.S. § 15-18-104. Therefore, in the event there is no preexisting directive, the Guardian must make this type of decision based on what they believe to be in their Ward’s best interest. This is not a simple task, especially when coupled with differing opinions of siblings, children, and other interested persons all of whom believe that they know what the ward would have wanted. In this instance, the guardian may want to seek the appointment of a guardian ad litem (GAL) to assess and report on what the GAL believes is in the ward’s best interest. Even then, however, the Guardian has the sole authority to make the final decision. If the GAL’s determination conflicts with the Guardian’s potential action, the Guardian should probably seek instructions from the Court.
It remains to be seen how Proposition 106 will affect a Guardian’s responsibility to carry out the ward’s preexisting instructions with regard to medically-assisted death, should the measure pass. It would, without question, add another ethical layer to the already complex and difficult decisions guardians must make at the end of a ward’s life. Practitioners must proceed with caution after considering the wishes of the ward, the input of family, and possibly a GAL, while attempting to respect the choice for those who want to end their suffering.
By Brooke W. Brestel and Jonathan Leinheardt, BCBA Elder Law Section Co-Chairs