Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Thursday, May 22, 2014

Article on Advance Health Care Directives

Brooke benzioBrooke M. Benzio published an article entitled, Advance Health Care Directives: Problems and Solutions for the Elder Law and Estate Planning Practitioner, 26 St. Thomas L. Rev. 37-63 (2013). Provided below is an excerpt from the introduction:

"Remember that what you possess in the world will be found at the day of your death to belong to some one else; but what you are, will be yours forever." 1 -Henry Van Dyke.

Since the modern movement for patient autonomy began gathering steam in the 1900s, individual concerns about the purpose, nature, and quality of medical care have become a larger component of the practice of medicine. 2 However, state and federal law has been relatively slow to respond, and establishment of the relevant legal framework is relatively recent. New Jersey courts led the charge with their decision in In re Quinlan, 3 regarding the right of an individual to decline medical treatment based on the constitutional right to privacy. 4 Fourteen years later, the United States Supreme Court showed support for the Quinlan ruling by holding that an individual's constitutionally established right to refuse medical treatment may be broader than the rights granted by state statutes. 5 However, in the same decision, the Court also held that states have the right to require that evidence of an incompetent person's wishes as to the withdrawal of life-sustaining treatment be proved by clear and convincing evidence and that the states have a legitimate interest in the preservation and protection of human lives within their borders. 6

In an effort to protect patient autonomy, many states began authorizing advance health care directives as a method of providing evidence for unforeseen future health needs. 7 In 1990, the Patient ...


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