Wills and Estate Planning Adelaide: The Right to Choose – Live or Die

Do you have strong feelings about what should happen at the end of your life?

You are not alone.

Around Australia in the last 15 years there have been several legislative attempts to create a framework for assisted suicide and voluntary euthanasia, and there have recently been Bills before the parliaments in both South Australia and Western Australia upon this issue.

In 1995, the Northern Territory of Australia became the first place in the world to pass right to die legislation. The Rights of the Terminally Ill Act lasted 9 months before being overturned by the Australian Federal Parliament. At present, voluntary euthanasia and assisted suicide are illegal in all states and territories of Australia; however the pressure is growing for change.

There are already places in Europe and in the USA where the laws permit degrees of voluntary euthanasia.

Of course this is a sensitive and controversial topic, provoking extreme reactions among people.  It touches upon some of the same issues as Capital Punishment and Abortion.

For some, the sanctity of human life is paramount, and for them religious beliefs prevent any suggestion of termination of life.  This group might be called the “Right to Life” group.

For others, it is about self-determination and the right to choose their own destiny.  For these people, it is outrageous that others should presume to dictate how they live or die. This group could be termed the “Right to Choose” group.

In between these two main groups there are many others, all trying to make sense of the legal, cultural, spiritual and ethical issues that permeate this debate.

Some people are concerned with the distinction between “with-holding” treatment on the one hand, and “with-drawing” treatment on the other.

Some people are concerned at the pressure which older people may feel to “not be a burden”.  Others are concerned at the potential for abuse by gold-diggers.

Questions of a patient’s capacity are certain to arise – what if they are affected by dementia, depression or other illness – should they still be permitted to decide their own fate?  What if it were to be suggested that their judgment was affected by unremitting pain or the effects of medications?  Yet these are the very types of patients likely to consider their ongoing existence – should they be deprived of their self-determination?

Then there is the thorny question of influence.  What constitutes “undue influence” in this scenario?  If grandma is 100 years old, and says she doesn’t want to live anymore, the people in whom she is likeliest to confide her desires are her family, who are the very people likely to “benefit” from her death.  How does society protect the elderly, the weak & the vulnerable from being coerced into a decision for the benefit of others?

On the other hand, we routinely consider it “humane” to spare our pets from needless suffering by putting them to sleep when necessary – and yet we cannot extend the same mercy to grandma.

This is an area where the law must attempt to balance highly polarised views. The debate is heating up – it will be interesting to see what happens.

At present little can be done from an estate planning perspective to facilitate the termination of life, however you can take steps to prevent the artificial prolongation of life, if unwanted in certain circumstances.

For those wanting to avoid artificial life-support where there is no hope for recovery (persistent vegetative state, or terminal phase of a terminal illness), we can create an end-of-life Advance Directive (sometimes called an Anticipatory Directive,  Living Will, Do-Not-Resuscitate form, or Natural Death Act form).

Preparing this important legal document now lets you tell your doctors what kind of care you want to receive if you become incapacitated and say how you want to be treated at the end of your life, but it is essential that you do so while you still have the legal capacity.  If you wait until you are in hospital before getting around to doing this, you could find that you are too late.  Just as you cannot apply for insurance after the disaster strikes, you cannot create legal documents like Wills or Advance Directives once you have lost your capacity (such as from illness or accident).

An end-of-life Advance Directive gives you peace-of-mind that your wishes will be carried out when you most need it.  It can also spare your family & friends stressful decisions at a very emotional time.

Don’t leave this too late.

Rod Genders is a senior Australian lawyer specialising in accident compensation and estate planning in Adelaide. His boutique specialist law firm is one of the oldest and most respected in Australia – visit it at www.genders.com.au . Rod is also a prolific author and speaker.  Some of his articles and books on Wills, Probate, Trusts, Estate Planning, Asset Protection and Retirement Planning may be found at www.genders.com.au/adelaide-lawyer-blog.