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Oklahoma Living Will Case Shows Difficulty in Implementation

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Living wills

Imagine that you have been diagnosed with a serious and debilitating disease. Your prognosis is not good, and the likelihood that you will become incapacitated is high. One thing you should consider is execution of a living will and other advance directives.

Of course, everyone should consider signing a living will and a health care power of attorney. But if you have strong feelings about your health care treatment after you lose capacity to direct your care, it is more urgent that you sign documents.

But a recent Oklahoma Supreme Court decision made us think about how even good planning can sometimes lead to uncertainty and confusion. That case involved a woman who had signed a valid living will and then became incapacitated. Then her family disagreed about her current wishes.

LAC’s story

In the reported decision, the woman is identified only as LAC. We’ll stick with that.

In 2013, after a diagnosis that included Parkinson’s, LAC signed a living will. It said that she would not want “life-sustaining treatment, including artificially administered nutrition and hydration” if she was in a terminal or end-stage condition, or if she was persistently unconscious. The form she signed was, in fact, the one included in Oklahoma statutes for living wills and health care powers of attorney (though Oklahoma calls the latter “health care proxies”).

By early 2018, LAC’s condition had worsened to the point that she could no longer speak. By early 2021, she required full-time care. Her daughter applied to be appointed as her guardian. She initially asked for permission to insert a percutaneous endoscopic gastrostomy tube (otherwise commonly referred to as a PEG tube). The PEG tube provided artificial food and fluids to LAC – despite her living will.

Within a few months, the trial judge had appointed a guardian ad litem to represent LAC’s interests, an attorney to represent her wishes, and a local lawyer as a neutral guardian. All three met with LAC to assess her wishes about continued tube feeding.

Ambivalent responses

After their meeting, the three attorneys reported that LAC seemed to want her tube feeding discontinued. It was hard to be certain, though, since she could only communicate “via facial expressions, hand gestures, and by moving her feet.” At first the group agreed that LAC wanted her tube feeding ended. Then they took a break and met with a hospice nurse who told them that LAC would suffer pain from the removal. They met again with her, and told her about the likelihood of discomfort.

At this point, the three lawyers were less certain about LAC’s wishes. Did she want her living will followed, and the PEG tube removed? Or did she want to continue to receive nutrition and hydration? As the guardian ad litem testified when asked if LAC wanted the feeding to be discontinued:

In our opinion, at the beginning, before we took that break, it was hard to tell, but we thought that we had a yes answer. But afterwards it was — we are very — pretty sure that she does not want that PEG tub[e] removed because she doesn’t want to feel the discomfort.

This uncertainty led to a court hearing, in which LAC’s daughter and son asked that her living will directive be honored. Her sister argued that LAC had effectively revoked her living will, and should continue to receive tube feedings.

The trial judge decided that placement of the PEG tube violated LAC’s living will, and that there was insufficient evidence to indicate that she had revoked her directive. Accordingly, he ordered that the tube be removed. That order was entered in May of 2022.

Appeals follow

LAC’s sister appealed. The Oklahoma Court of Appeals disagreed with the trial judge. That judge ruled that the revocation of a living will must be shown by clear and convincing evidence. The appellate judges said no, only a preponderance of the evidence is required. By that lower standard, according to the appellate court, LAC had effectively revoked her living will.

Now, nearly two years after the initial ruling, the state’s highest court has weighed in. The Oklahoma Supreme Court has now ruled that the standard of proof required to show revocation of a living will is, as the trial judge ruled, clear and convincing evidence. And the high court affirmed the trial court decision to remove the feeding tube. In re Guardianship of L.A.C., February 6, 2024.

Are there lessons to be learned from LAC’s story?

We suggest several.

  1. There is a lot of confusion among lawyers (and courts) about questions of medicine and mortality. Not only did the Oklahoma Supreme Court refer to PEG tubes as “gastronomy” tubes, but it is clear that one hospice nurse’s assertion that there would be discomfort associated with natural death went unchallenged.
  2. Litigants often use the legal system to “run out the clock” and achieve their desired results. Here, the question was whether LAC’s living will would be effective at the end of her life. The legal system defaulted to keeping her alive for as long as two years while the issue wended its way through the courts.
  3. Health care powers of attorney can be more powerful than living wills. Here, the issue was whether LAC still wanted her living will enforced. But a strong advocate as health care agent (or “proxy”) might have resolved the entire dispute. It’s not clear whether LAC might have named her sister as proxy — but if she did, her sister was the one player in her drama least likely to carry out her wishes.
  4. Knowledge really can be power. If LAC had engaged in thoughtful discussions with her sister and her children, they might have been more certain about her wishes — and perhaps less likely to insert their own preferences or dispute the validity of her living will.

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Robert B. Fleming


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


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


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


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.