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.
- 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.
- 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.
- 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.
- 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.
