Wills, Trusts & Estates Prof Blog

Terri Schiavo -- Update 4

Judge Greer granted Terri's husband authority to remove her feeding tube at 12:00 p.m. CST on March 18, 2005.  Terri's parents will continue with their efforts to keep the feeding tube in place.   Among other things, they will have additional medical tests conducted which they hope will demonstrate that Terri is more mentally capable than currently believed.

Professor Lists Now On-Line

The lists of professors who teach in the Wills, Trusts, and Estates area are now on-line.  There are two lists, both in pdf format -- one list is by the last name of the professor and the other is by law school.  Links to these lists are found on the left side of the page under the title, "Resources."

If you have an update or correction to the lists, please send me an e-mail at [email protected].

Anatomical Gifts -- Recent Statistics

As of February 2, 2005, 87,306 individuals were on the waiting list for an organ transplant.  Each day, seventy transplants are performed and, because of the shortage of organs, sixteen people die.  Organ Donations Give Life, USA Today, Feb. 4, 2005, at 1A.

Technology Information for Survivors

Estate planners recognize the importance of a client maintaining a comprehensive inventory of assets such as bank accounts, insurance policies, stock holdings, etc. so that the client's survivors will be able to locate these assets.

As discussed in Susan B. Shor, Digital Property and the Law of Inheritance, Tech News World, Feb. 22, 2005, it is also important for a client to keep a comprehensive inventory of technology information.  Ms. Shor writes:

If a password list is part of your estate planning, a number of issues will be alleviated. Create an inventory of URLs, Web content, e-mail passwords and any other property an heir [or beneficiary] will need access to.

Provided this list is kept in a secure location, such as a safe deposit box, this appears to be an excellent idea.  The list would also need to be updated on a regular basis because computer users frequently change passwords and user names as well as add or subtract from the types of things kept or accessed electronically.

Special thanks to Davis Nelson of the Legal Philosophy Blog for telling me about Shor's article.

Euphemisms for Death

Are you tired of using the depressing terms such as "dead" and "death"?  Perhaps a good euphemism is what you need such as, "cease to function as a carbon-based biological unit" or "metabolically challenged."  The Dead and Buried website has a list of over 200 euphemisms from which to choose.

Hofstra Looking for Visitors

The following is from an e-mail message from Hofstra's Vice-Dean Marshall E. Tracht:

Hofstra Law School will be looking for visitors for the 2005-06 AY.
Possible areas include Bankruptcy and Commercial Law, Civil Procedure,
Con Law, Contracts, Wills Trusts & Estates, Federal Income Tax, and
Criminal Law.

Please let me know if you might be interested.

Thanks,

Marshall E. Tracht
Vice Dean and Professor of Law
Hofstra Law School
121 Hofstra University
Hempstead, NY  11549
(516) 463-5858
[email protected]

Life Insurance Trust Deemed to Lack Insurable Interest

In a case sending shock waves across the nation, a United States District Court interpreting Maryland law has determined that a life insurance trust has "no insurable interest in the life of the decedent" and that the policy is consequently void.  Judge Hilton explained that the trust would suffer no detriment from the insured's death and, in fact, the trust would gain more from the life insurance proceeds than it would if the insured continued to live.

The case is especially interesting because of a highly unusual set of facts which could have easily allowed the judge to reach the same end result by finding that the insured misrepresented his health condition by not disclosing brain tumor surgery and chronic alcoholism treatment.

An appeal is pending.

Special thanks to Prof. John K. Eason for bringing this case to my attention.

Terri Schiavo -- Update 3

Yesterday (February 23, 2004), the court extended the stay on the removal of Terri Schiavo's feeding tube until Friday.  The judge will determine whether Terri should have new medical tests and whether her husband should be removed as her guardian.

"Comment" Feature to be Removed

The Law Professor Blogs Network has decided to follow the practice of most major blogs and disable the comment feature.  This is due to complaints received regarding comments on some blogs (not this one) and spam comments.

Thus, if you would like to make a comment, please e-mail it to me at [email protected] and, if appropriate, I will be glad to post it with proper attribution to you.

Supreme Court to Review Oregon's Assisted Suicide Law

Background:

Most state legislatures have enacted statutes which make it a crime to assist someone to commit suicide. These statutes withstood constitutional muster in the United States Supreme Court case of Vacco v. Quill, 117 S. Ct. 2293 (1997). The Court held that the United States Constitution does not guarantee a person the right to die and that states can prohibit assisted suicide. However, the Court indicated that a state may decide to authorize and regulate assisted suicide.

Oregon is the only state to permit its citizens to seek assistance in procuring the means to commit suicide. The key language of this landmark statute reads as follows: "An adult who is capable, is a resident of Oregon, and has been determined by the attending physician and consulting physician to be suffering from a terminal disease, and who has voluntarily expressed his or her wish to die, may make a written request for medication for the purpose of ending his or her life in a humane and dignified manner in accordance with this Act."  Oregon Death With Dignity Act, Or. Stat. § 127.805.

Assorted physicians, patients, and residential care facilities challenged the law on the grounds that it violated the Religious Freedom Act, the Americans with Disabilities Act, due process, and equal protection. The district court began by issuing a preliminary injunction preventing the Act from taking effect. Lee v. State of Oregon, 869 F. Supp. 1491 (D. Or. 1994). The next year, the court granted summary judgment on the equal protection claim and issued a permanent injunction against the Act’s enforcement. Lee v. State of Oregon, 891 F. Supp. 1439 (D. Or. 1995) (declaratory judgment and permanent injunction); Lee v. State of Oregon, 891 F. Supp. 1429 (D. Or. 1995) (equal protection opinion). "Essentially, the district court found that the Act violated the Equal Protection Clause because it provided insufficient safeguards to prevent against an incompetent (i.e., depressed) terminally-ill adult from committing suicide, thereby irrationally depriving terminally-ill adults of safeguards against suicide provided to adults who are not terminally ill."

On appeal, however, the court held that the federal courts did not have jurisdiction to entertain the plaintiffs’ claims. Accordingly, the district court’s decision was vacated and the case remanded with instructions to dismiss plaintiffs’ complaint. Lee v. Oregon, 107 F.3d 1382 (9th Cir. 1997).

In 2001, United States Attorney General John Ashcroft determined that assisted suicide was not a legitimate medical practice and thus doctors who prescribe the deadly drugs would be in violation of the Controlled Substances Act (CSA). In Oregon v. Ashcroft, 368 F.3d 1118 (9th Cir. 2004), the court held that this attempt to hold physicians criminally responsible if they help terminally ill patients commit suicide exceeded Ashcroft’s authority under the Controlled Substances Act (CSA). The court stated, "To be perfectly clear, we take no position on the merits or morality of physician assisted suicide. We express no opinion on whether the practice is inconsistent with the public interest or constitutes illegitimate medical care. This case is simply about who gets to decide. All parties agree that the question before us is whether Congress authorized the Attorney General to determine that physician assisted suicide violates the CSA. We hold that the Attorney General lacked Congress’ requisite authorization. The Ashcroft Directive violates the "clear statement" rule, contradicts the plain language of the CSA, and contravenes the express intent of Congress." Id. at 1123.

The first incident of a person using the Oregon statute was documented in March 1998 with fifteen additional people following suit by the end of the year. The statistics for subsequent years are as follows:

1999    27
2000    27
2001    21
2002    38
2003    42

Recent Development:

Yesterday (Feb. 22, 2005), the Supreme Court of the United States granted petition for a writ of certiorari in Gonzales v. Oregon, 2005 WL 405754 (2005) (the new style of Ashcroft v. Oregon).  The Court has thus agreed to decide whether the federal government has the ability to block Oregon doctors from complying with Oregon's Death With Dignity Act.