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Leaving Life Well

31 May 2016
As the acidic, and recently departed American comedian Joan Rivers once said, I believe "Life is uncertain, eat desert first."

While this is good advice given life is replete with unpredictable events, one particular event is not - death. What is not quite so precise however, is where, when and how that event will occur. While we can't usually control or affect the 'where' and the 'when' of our celestial transfer, we can have some say over the 'how'.

For all of us, including those who may be in a terminal condition but who still possess the ability to make our own decisions, the law is clear - you can refuse medical treatment even if to do so, would cause or hasten your death. In other words, we can allow ourselves to die.

But what about a person, in a similar condition, who has lost the ability to make their own decisions?

Increasing longevity has its downsides – it increases the number of people who will lose the capacity to make their own decisions.  In response to that, in the past 20 years in this country, there has been an avalanche of legislation creating a whole, although remarkably varied, regime enabling each of us to appoint people to make decisions for us if we should ever lose the capacity to do so. Added to that has been legislation in some States giving us the ability to give legally binding directions to those decision makers about the health care we would or would not want if we can't make those decision for ourselves.

For many years we have been able to make what are known as 'common law' health directives. We can write down on a piece of paper what health care we want in the future. The trouble with these is that they are often subject to dispute or lacked clarity in terms of what we really meant and when our wishes would be triggered.

Some States now have a legal document you can complete giving clear, and in Queensland's case, legally binding directions about what health care you would want in the future if you can't make the decisions yourself including whether you do or don't want life sustaining measures.

Generally they are called Advance Health Directives or Advance Care Directives.

Some people really don't care about planning for end of life care.  It is all a bit maudlin and yukky. Their mantra is - just leave it to the family and the doctors. But, I often ask my clients "Would you want to make sure your wishes would be respected if ever you can't express your wishes, especially at the end of your life?" Not surprisingly, most of them say they would.

Yet, while the law has been good to us in giving us the ability to complete an advance health or care directive, few of us actually do. One estimate I have seen is that only 14 % of Australians have a care or health directive in place.

Our avoidance mentality can have dire and not entirely unanticipated consequences. First, your wishes may not be respected. Second, when they are called upon to make decisions for you, your family has no clear direction from you as to what you would want. This, as I have often seen, can lead to family dispute and ultimate implosion. I suspect it is not a gift you would want to leave.

At a more subtle level is the vexed issue of euthanasia. While the law permits us to make decisions or give future care directions that result in our death, it does not allow other people to help us to achieve that goal. Also known as 'assisted suicide', helping someone to bring their life to an end is a criminal offence even if that person has the capacity to request or direct the assistance. Not only that, as confirmed by a recent court decision in Queensland, helping someone to die can result in the forfeiture of your benefits under that person's Will.

Thinking, while you're here, about when may not be here (or all here), is one of those tomorrow tasks. Most of us just cruise along in the world of the 'gunnas' and the 'she'll be rights'. Experience tells me that their recalcitrance is a hibernating poison for family harmony and an invitation to a lawyer's picnic.

However, lest you have conjured up an image of me as working in a glass house, or a 'do as I say not as I do' lawyer - can l assure you readers that I have an Advance Health Directive in place. I don't want to bequeath my family with a legacy of lassitude and lethargy. I want them to know that, if ever it comes to it, they can help me live and die in the way I want. That's what they would want too.
 
Margaret Arthur
Partner
Elder Life Services
CRH Law

 

      

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