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Living Wills, DNRs, and Death with Dignity - The Million Dollar Question

SPOILER ALERT – This post discusses the plot of “Million Dollar Baby”. If you have not seen this movie and do not want the end spoiled for you – please skip this post.

©2019 Judith Kamman Kliban

This year I have a cat cartoon calendar at my desk. Each month depicts a couple of cats doing, well, what cats do: Unzipping their fur to go for a dip in the lake, taking apart clocks, biking through the snow, and apparently this month – boxing! The cute cartoon inspired me to watch the highly acclaimed 2004 boxing movie “Million Dollar Baby.”

If you have continued reading after the big SPOILER ALERT, then you already know the struggle that both Maggie Fitzgerald (Hilary Swank) and Frankie Dunn (Clint Eastwood) face during the second half of the movie. After training with Dunn and achieving nearly all of her dreams, Maggie suffers a horrific injury that leaves her intubated and paralyzed. As her condition worsens, Maggie suffers not only amputation and the loss of her last familial ties, but the slow and even more painful loss of the memories of her achievements and enjoyment of life. Her agony becomes so great that she can’t bear to live any longer.

While most of us don’t live the lives of underdog champion boxers, considering end of life decisions and what quality of life means to you are important considerations for us all – no matter our age, profession, or health.

Accordingly, we often receive questions about the following topics: living wills, the right to die, death with dignity, aid in dying, and do-not-resuscitate orders (“DNRs”). While one or more of these documents may or may not be appropriate for you, it is critical to understand the difference between these concepts so that you can accurately convey your end of life wishes to your loved ones and medical professionals. (Physician Orders for Life Sustaining Treatment (“POLST”s) are also being used more often and we will discuss this document and its variations in a future post.)

1. Do-Not-Resuscitate Order (“DNR”) - DNRs seem to cause the most confusion. Please note that DNRs are not legal documents provided by an attorney, but are medical orders that are issued by a physician. Most often, DNRs are implemented when an individual is currently in the final stages of life and has expressed the wish that if she stops breathing, for example, she does not wish to receive CPR. The DNR does not include any other instructions about end of life treatment. There is no language about pain medication, intubation, chemotherapy, or nutrition and hydration. However, New Mexico grants health care providers final authority to decide whether or not to honor a health care decision (based on their own conscience). (NMSA 1978 § 24-7A-7(E)).

2. Living Will – DNRs are often confused with living wills. Unlike a DNR, a living will is a legal document that an attorney can help you create. Historically, New Mexico statutes included the Right to Die Act. However, that act was later repealed. Because of this, we are often asked whether you can even have a living will anymore. -- yet another point of confusion. A living will, regardless of its nomenclature, is a legal document that expresses your wishes for end of life treatment (including, for example, nutrition, hydration, and pain relief). In New Mexico, you are legally authorized to specify that you would like to receive or not receive certain treatment. Many people include language in their living wills stating that if they are terminally ill with no hope of recovery, that they would not like to receive life sustaining or prolonging treatment (e.g., intubation, chemotherapy, amputation, etc.).

3. Death with Dignity / Right to Die – Here is where Maggie Fitzgerald’s plight comes back in: Living wills can specify an individual’s wish to refuse life-prolonging treatment. This is different from physician assisted suicide (also sometimes referred to as death with dignity, euthanasia, or aid-in-dying), which is the proactive assistance in terminating life. New Mexico has had a long and complicated history (and potentially future) with this issue. However, as current law exists, New Mexico does not legally authorize aid-in-dying. Had “Million Dollar Baby” occurred in New Mexico (as opposed to Washington or Oregon, for example), Frankie Dunn’s proactive steps to end Maggie’s life could have been illegal.

Although difficult to think about, these documents, their impacts, and whether or not they are appropriate for you are critical considerations for preparing your own estate plan. Please contact our office or another qualified attorney if you would like to discuss these documents further.

Post by: Madison R. Jones, J.D., M.B.A.

Disclaimer: These materials are designed as a general overview and should not be relied upon for legal or tax advice. Please consult a qualified attorney and/or tax advisor for compliance and up-to-date information and advice specific to your circumstances.



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