The End of Life Tar Pit

I had the most amazing client interview the other day.  A retired attorney in a lockdown unit at an assisted living facility, placed there by his family and against his will.  Perfectly lucid, but deemed to be “unable to make informed decisions” by his doctors – not because he couldn’t understand and articulate his desires, but because the desires he expressed were unacceptable to the listeners: suicide.

He could explain why he wanted to take his life, and it made sense:  his age, physical limitations, and bleak prospects for quality of life in the future.  I was particularly moved by one of his reasons: having been predeceased by his wife and other family members, he spoke of the possibility – as he said, the “outside chance”  – that he may be reunited with them at death.

As an estate planner, it is hard not to get trapped in a fascination with the issue of end of life planning.   It is a new concept in the law, and clearly evolving.  Currently only a few states allow assisted suicide. Others states stumble through, as Michigan does, with surrogate decision making laws and guardianships.

Perhaps it is out of our own individual concerns about mortality, and having worked with the aged and infirm long enough to be particularly sensitive to the unpleasantries that often accompany the final phase of life, that estate planners can get so lost in the mire of this area of the law.

At times I think of the role of lawyers in society in terms of a metaphor.  There is a house that humanity resides in.  The dwellers allow only the scientists to go outside and look around, but demand that they come back in and explain that they see the hand of God in nature.  They allow only the lawyers to go into the basement, to inspect and maintain the foundation and utilities.  They demand that the lawyers are able to explain what they see in terms of justice and truth.  The people in the house don’t want to believe that the placement of rocks on which the house was built are the product of randomness – and so the lawyers do their part in keeping the house standing without offending those who dwell there.

In looking at the way the law handles end of life, I feel this calling most acutely.  Society is faced with an unprecedented issue – we are living longer, but for many, the final years are without quality.  We have a hard time thinking about and talking about quality versus quantity in the context of human life.  So the lawyers struggle with how to explain the rules for ending life, when those rules must supposedly stand on the rocks of justice and truth.

Yes – I am trapped.  But please, don’t pull me out just yet.