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Evidence of Living Will Intent Must Be Clear and Convincing

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OCTOBER 15, 2001 VOLUME 9, NUMBER 16

Many patients approaching the end of life feel very strongly that they would not want to be kept alive by feeding tubes, artificial breathing machines or other devices. Signing appropriate advance directives helps, but there is no guarantee that they will be located, properly understood and followed in every case. Discussions with family members, caregivers and medical providers can dramatically increase the likelihood that the patient’s wishes will be carried out.

Consider, for example, the case of Delores Cameron. She had been married for over 40 years to James Cameron, but she had two sons from an earlier marriage. In 1995 she signed a living will, using the form provided by the Alabama Legislature. It directed that “artificially provided nutrition and hydration” should be withheld if she were ever in a persistent vegetative state.

In March of 2000, after a series of strokes, Ms. Cameron became completely unresponsive. She was cared for in an Alabama nursing home, and fed through a feeding tube. Mr. Cameron directed the nursing home to remove the feeding tube.

Ms. Cameron’s sons filed a lawsuit to prevent removal of their mother’s feeding tube. After five days of hearings lasting over two months, the judge ruled that Ms. Cameron’s wishes should be honored, and her sons appealed. They made two arguments that serve as a warning for other patients who execute living wills, durable powers of attorney or other advance directives.

First they argued that Ms. Cameron was not really in a persistent vegetative state. Although one physician testified that she was slightly responsive to some stimulation, two others insisted that she lacked “thought, sensation, purposeful action, social interaction and awareness of self and environment.”

The sons also insisted that it was impossible that their mother really understood the meaning and effect of her living will when she signed it. If she had realized that it would have meant withdrawal of a feeding tube, they argued, she would not have signed the pre-printed form. They did not provide specific evidence of her wishes, but doubted that she had intended to sign the living will.

The Alabama Supreme Court decided that Ms. Cameron’s wishes should be followed—but only if the evidence of those wishes was “clear and convincing.” The trial judge had not used that phrase, so the case was sent back for a further hearing. Knight v. Beverly Health Care, August 31, 2001.

Would it have helped for Ms. Cameron to discuss her wishes with her sons in advance? The financial and emotional cost of legal proceedings might have been avoided if family members had talked over the documents and their meaning before Ms. Cameron’s final illness.

The moral of Ms. Cameron’s story: It is not enough to just sign a directive—family members should be informed and wishes discussed in advance.

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Robert B. Fleming

Attorney

Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman

Attorney

Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson

Attorney

Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour

Attorney

Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.