Loss, Grief, and Bereavement (cont.)

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What are the legal issues associated with dying and death?

In order to appreciate the legal aspects of death and dying, it may help to understanding death and the process of dying. In order to declare (pronounce) a person as having died, a physician performs a physical examination to assess that the person shows signs of death, such as the absence of breathing and heartbeat, and the individual does not respond in any way to pain. The doctor then completes a death certificate, which indicates the name, date of birth, and date of death, as well as the location of death and its immediate cause, like stopped breathing (respiration) or heart (cardiac) functioning and the medical condition that is thought to have resulted in the cause of death (for example, infection, cancer, diabetes).

Consulting with a legal expert, such as an attorney, is advisable when either planning for or managing the legal matters associated with a death. Some of the major legal issues involved with dying include the person's right to have informed consent to receive or refuse treatment, advance directives, establishing a living will, and making funeral arrangements, if desired. Informed consent, which is required by law for every patient or patient's guardian to give, is the responsibility of treating practitioners to provide that opportunity to patients. It involves the doctor or other health professional explaining to the patient or patient's legal guardian the options for treatment of whatever condition from which the individual suffers, the possible benefits as well as risks for each treatment, and why the health professional may be recommending one treatment over another. Furthermore, it is the responsibility of the professional to let their patient know that they have the right to choose whatever treatment they want or to choose to refuse treatment. Particularly when discussing chronic or terminal illness, conditions over which there is little control over the ultimate outcome of care provided, having the individual and his or her family feel as much control over their treatment options as possible is of great importance.

Advance directives are those decisions an individual would like to express to his or her family and treating professionals prior to potentially becoming no longer able to communicate their wishes prior to death. Examples of advance directives include what, if any, forms of life support the individual would like to receive to maintain their life, as well as what "heroic" or aggressive interventions, if any, they would like made immediately should their heart or breathing stop. Getting food and liquids through a tube, having their breathing or heart rate performed by a machine, and opting for palliative care (care that will address pain and otherwise make them comfortable rather than try to cure them) are choices a person often considers in terms of what they want done or not done to maintain their life. In the event that the individual expresses a desire to have no heroic or aggressive medical interventions made should their heart beat or breathing stop, a do not resuscitate order (DNR) is indicated in his or her medical chart. Opting for such an order is by no means a request to stop all medical treatment. In other words, managing any condition other than actual loss of life (for example, infections, anemia) will continue. Another important example of an advanced directive is whether or not the dying individual would like to be considered as a possible organ donor.

In order to have their medical and financial wishes carried out, it is important for individuals to name a health proxy, someone trusted to make decisions that are in keeping with the individual's in the event that those wishes are unknown and the person can no longer express his or her wishes. In order to formally appoint a health proxy, an attorney must write a durable power of attorney, the legal document appointing the health proxy. In addition to having that document signed, witnessed and notarized, a copy of it must be placed in the individual's medical chart. Similar to the medical power of attorney, a durable power of attorney of finances can be helpful to establish who would be in charge of the person's finances if she or he were living but unable to be in charge of their own financial matters. Last but not least, if the individual has any strong preferences regarding a funeral or whether his or her remains are buried or cremated, making those wishes known in writing can prevent placing the burden of those decisions on surviving family members, who may struggle with agreeing on these issues, particularly as they grieve the loss of their loved one. As painful as it is to watch a loved one die and as difficult as it may be to talk about their death with them before it happens, many are the families who suffer even more than need be because steps are not taken to address these important legal issues.

Medically Reviewed by a Doctor on 8/23/2012

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