Although death sometimes arrives with plenty of warning, often there is none. Estate planning, of course, tries to provide a roadmap for both scenarios. The truth is, having an estate plan doesn’t always mean things go smoothly, and when things go smoothly, it’s not always because there was an estate plan.
Take Luke Perry. After the Beverly Hills, 90210 and Riverdale star died last week at the age of 52, some concluded that, because his family didn’t end up in court, he must have had an effective estate plan. Well, maybe. But also maybe not.
Perry died in California, after suffering at least two major strokes. His loved ones gathered after the first episode on Feb. 27, and they were hopeful he would recover. But after another stroke, his family decided that life-sustaining treatment should be removed, and he died on March 4.
If this had happened in Arizona
Because we don’t practice in California, we’ll not pretend to know the nuances of California law. But many states have laws similar to Arizona’s. If he had died here, it’s quite likely that no court proceeding would have been required for such a decision, primarily because Perry’s loved ones appear to have agreed with the course of action.
When it comes to health-care decisions for an incapacitated person, Arizona statutes provide lots of options. Number one on the list is a person appointed as health care agent or guardian already appointed by a court. But if neither one of those is in place, health-care providers are to seek other “surrogate decision makers,” in a specific order of priority. The “first available and willing to serve” may make medical decisions for the person who can’t. The order goes like this:
- Spouse, unless legally separated.
- Adult child; if more than one, majority of adult children reasonably available for consultation.
- A parent.
- Domestic partner.
- Brother or sister.
- Close friend. Adult who has exhibited special care and concern, familiar with patient’s health care views and desires, willing and able to become involved and act in patient’s best interest.
How to make the decision
The decision-maker is then supposed to follow the patient’s wishes, if known. The only reason a court would get involved is if there is a disagreement about who should be the decision maker or the decisions that person makes.
In Perry’s case, many loved ones were reportedly at his bedside: his fiancé, Wendy Madison Bauer, with whom he had been together for more than a decade; Perry’s two children, Jack and Sophie, ages 21 and 18, respectively; his ex-wife Minnie Sharp, divorced in 2003, but with whom he remained close; his mother, Ann Bennett; a brother, Tom Perry, and a sister, Amy Coder, and more.
Under the Arizona statute, had it applied, his fiancé and former spouse would have been down at No. 6, if on the list, if included at all; his children, Jack and Sophie, would have been the main decision makers, and because there are two of them, to get a majority, they would have had to agree on treatment. It seems onerous to leave such a decision to young adults, and they could have declined, and the priority would have fallen to his mother, followed by his siblings.
Even better — plan ahead
It’s pretty easy to see that in some families, the statutory method of determining a decision maker could be fraught with conflict. The better method is to spell out who should make decisions by naming one or more people specifically. Perry could have, and likely did, name an “agent” to make health care decisions for him. The actor had a colon cancer scare in 2015. Reports suggest that the experience prompted him to do some estate planning. Almost every estate plan includes a health care directive. That usually means advance directives — both a health care power of attorney (naming the person to act for you) and a living will (giving guidance regarding types and degree of treatment).
An agent must be an adult, and at that time, Perry’s children were minors. Unless he updated his plan, they likely were not named at all. Legally, then, they might have no power to make the decision (although his document could have required the named agent to consult with them).
Perry’s agent, whoever it was, would be tasked with making decisions that complied with his wishes in his advance directives, or their knowledge of Perry’s values. If Perry’s values weren’t known, the agent could make decisions in Perry’s best interest.
Is it OK for the surrogate to withdraw life-sustaining treatment?
Is death ever in a person’s best interest? It’s of course debatable, and Arizona law has a way to address that dilemma, too. Health care providers may refuse to comply with an agent’s decision or direction that violates the provider’s conscience. If the provider were to refuse, the patient’s care can be transferred to a provider who will follow the patients advance directives or the surrogate’s directions.
In Perry’s case, we may never know who, or what group, made the actual decision. That hardly matters. What does matter is your family’s dynamics and whether, should something tragic occur, you have left sufficient direction to help them through it. Do you have advance directives in place? Luke Perry’s untimely death reminded us: it’s time to get your advance directives completed and signed.