Death - May a Guardian End a Ward's Life Support

Death - May a Guardian End a Ward's Life Support? (#2) (2002-3)

YouKnowItAll.com

©A.Hawkins

Suitability

No special expertise is required. However, some of the concepts, facts and issues may be emotionally difficult.

The CLE Process

1. Study this text.

2. When you finish this text, go to www.YouKnowItAll.com to observe the discussion. There, you may choose to ask questions or make comments, or you may choose to just observe any discussion posted by others.

3. Keep track of your actual study hours and dates. After you complete your study, you certify your actual study hours at www.YouKnowItAll.com and you choose to whether to pay by check or credit card.

4. YouKnowItAll.com provides a certificate of your attendance with the course name, course number, and the CLE credit hours you earned. It appears on your computer screen after you certify your hours and pay.

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The Teacher’s Comment on Our Life and Death Courses

I did not set out to find topics that are as profound as life and death. These topics found me. In 2001, two state Supreme Courts issued major opinions. One was on a dispute over custody of frozen “preembryos” or “test tube babies” that arose when couples divorced before completing in vitro fertilization. The other involved a dispute over a guardian’s power to stop life support of a ward who has only slight cognitive brain function. In 2002, Ted Williams died and his body was preserved for “reanimation” as a living human.

Our courses cover:

• life before life (frozen test tube babies that have not been implanted in the womb);

• life after death (a frozen corpse that awaits “reanimation”); and

• death (removing artificial “life” support for a person with slight cognitive function).

Each topic is interesting in itself, but much more interesting when studied as a group with the concepts compared. For example, compare:

(1) a fertilized human egg frozen for later use to create a baby

with

(2) an 85 year old brain frozen to grow a new body for the brain;

or compare

(1) a person with slight cognitive brain function kept on life support

with

(2) a brain that is frozen for use when a body can be regrown.

The issues are profound. What is life? What is death? What is human life? As technology makes some amazing techniques routine and gives hope for other amazing techniques, courts decide the meaning of life and death. Lawyers represent people who face these issues.

Are lawyers ready for these issues? The cases show that, on both substantive and procedural levels, courts are not ready. Courts don’t know the answers, yet they take years to decide what to do with a test tube baby, a corpse, or a person on life support.

Have you considered whether a frozen “test tube baby” or a frozen corpse which awaits new life is a person or property? Does someone own the “baby” or the corpse? Does the property division upon divorce divide the “babies” in the freezer, or is it the child custody provision that controls? If the “parent” dies, does the residuary clause of the will bequeath the frozen “test tube babies” or does the guardianship appointment give the guardian control over implanting them? If the “frozen test tube babies” are property, may creditors attach them? If they are not property, are they people who have a right to life and a right to a lawyer? If they are “killed,” is it murder? May test tube babies be given away? If they are not property or people, what are they?

When a person no longer has the ability to think, is the “person” still a person and human being? Is the person “alive?” At what point does the law allow, or require, removal of life support? When does a “person” become a “corpse?” May a guardian decide whether to keep a ward on life support or end life support and allow the ward to be declared dead?

Traditionally the decedent’s body was disposed of respectfully by one of many accepted methods. It was not preserved for later use. It was not an asset to be sold. It is no longer simple. Is a corpse property, a human being, or something else? Does a corpse pass as part of the residue of an estate? Can a Will control the disposition of the corpse? Bodies and body parts may be donated for use by others. Today, Ted Williams’s body is preserved for Ted’s personal reuse. You might say that Ted made an anatomical gift of his body to himself. Wow! How the world changes. Is Ted’s corpse property? Is it human? What is it? One of Ted’s daughters said that the plan was to sell Ted’s DNA for use in cloning humans. If that sounds unbelievable, consider that Texas A&M cloned a cat. Perhaps the future will include freezing a corpse, harvesting the DNA to create test tube babies which grow old and are on life support, removing the life support, and freezing the corpse. Perhaps “from dust to dust” will be replaced with “from freezer to freezer.”

Profound issues of life and death are covered by these courses. Lawyers face them with increasing frequency. We hope that this cluster of courses provides useful and interesting insights for you.

This comment is repeated in each life and death course, so you may skip it if you take more than one course.

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This course

Some people have mental deterioration that leaves them in a permanent vegetative state Some have somewhat less mental deterioration and are left in a condition just above a vegetative state. This topic is on American law in the second category of cases. There is still some level of mental awareness, but very little. A feeding tube is required for food and water. This course looks at the American state Supreme Court cases that decide whether a guardian[1] for such an individual may remove a ward’s feeding tube.

This is a courses in two parts. It is in two parts for a simple reason. If it was in one course, it would be too long. Each part covers two cases. Together, they cover all four of the opinions American state supreme courts[2] on the topic. Very little has been omitted because almost all of the opinions are interesting. The facts are important, so they are included in full.

Part #1 covers Conroy and Martin, decided by the New Jersey and Michigan supreme courts in 1985 and 1995.

Part #2 contains Edna M. F., a 1997 Wisconsin Supreme Court case and Wendland, the California Supreme Court case decided in August 2001 which inspired this course. The judges who decided these cases are wordy. They seem determined to appear wise, thoughtful, careful, and caring. They obviously expect these opinions to be read and discussed. Some courts produced multiple opinions. These courts are creating the law as they go along. They see that as their duty. By your study, you may question whether traditional courts are suited to play a role in this kind of case.

The facts and law in the cases in this course raise the issue of what life is, and when it ends. but the courts do not address these fundamental issues. As you review the facts, consider what you think is required to say that a mechanically functioning human body contains human life. Is mental function required? If so, how much and what kind? If not, what is required, in your opinion? Do others agree? Is there a consensus? Is there an accepted cultural norm? Is “human life” a body, a mind, both body and mind, or either body or mind? Medical technology is raising issues that used to be academic. They are not academic any more. The courts do not discuss these concepts in these cases. Is it because they don’t know what to say, or because they didn’t recognize these issues?

Life and death courses raise numerous difficult factual and legal matters. You will have feelings as well as thoughts. In addition to studying as a lawyer, you may also consider what you would want for yourself, if you were the ward or if you were the ward’s guardian, spouse, child, friend, partner, or family. These issues are personal and difficult.

In your opinion, how long is reasonable time for a court to decide the question, “should the ward’s feeding tube be removed?” Is one day reasonable? Is one week? Is one year? No case was decided within a year. That is the same pattern as in the preembryo custody cases. Courts take years to decide these cases of life and death. People die. Preembryos die. Bodies cease to function. Courts ponder ponderously.

A Comment and Prediction by the Teacher

The cases in this course suggest three critically important issues that I have never seen discussed elsewhere. They are not mentioned by these courts. It is unlikely that the judges thought of them. Sooner or later, someone will think of them. You will be prepared.

First, consider the factual situation of a person who dies after the feeding tube is removed and would not have died otherwise.

Second, mix in a legal conclusion that the feeding tube should not have been removed.

Yikes!

The consequence has civil and criminal legal implications.

Was it murder? Maybe so. If not murder, maybe it was another crime against the person. Is the person who removed the tube vulnerable? Sure. Is the person who ordered the removal vulnerable? Sure. Are you vulnerable? Maybe. The person who “commits the murder” is at risk. That might be a medical professional. There might be more than one involved. The one who ordered removal is also at risk. Consider the result of hiring someone to commit a murder. Both the person buying the service, and the murder service provider are subject to criminal penalties. The belief of the killer that the victim should die is not a great defense to a murder charge. What about the risk to those who advise, conspire, aid, abet, and facilitate? It seems impossible to rule out a criminal charge if the advice or other role is substantial. It may be best for a lawyer to be very cautious about their words and representation. Imagine the jury listening to the defendant saying, “my lawyer told me that it was ok to remove the feeding tube and let George die” or “George’s lawyer told me that it to remove the feeding tube and let George die.”

A slayer’s rule issue is present. If the death was caused by a beneficiary, does that beneficiary lose the right to inherit, receive insurance proceeds, or receive other property as a result of the death. This may get sticky. It is a fight between beneficiaries. Feelings may be intense. Imagine a subsequent spouse causing removal of a feeding tube, and the children from a prior marriage seeking to disqualify her as a beneficiary. I expect this issue to be litigated with some frequency when lawyers and laymen realize the implications.

A tort claim is possible. Is wrongful removal of the feeding tube a wrongful death? Will the children in the prior fact situation also sue for all of the spouse’s money? Will they sue for the money of the lawyer who said “go ahead” or the doctor who removed the tube?

I think that the consequences are substantial. All of this is predicated on a removal that is wrongful. Study of these cases will tell you whether that is a risk. However, being right isn’t enough. If you have been charged with murder and acquitted, sued and successfully defended, or charged as a slayer and shown that the killing was not wrongful and that the slayer’s rule does not cause forfeiture, you will realize that the process that you went through was not as much fun as playing golf, but that it cost more than green fees. Even if you are right, the process is horrible.

Comments About the Course Material

This course is a case study in which the cases are presented case by case, rather than issue by issue. In the main text comments by the author are in italics with a wider margin than the quotations from the opinions. Other comments are in footnotes. Quoted court opinions are indented. Cues and comments by the author of this text are included before the text to which they relate. Rhetorical questions are incorporated to stimulate your thoughts.

There are two important terms. “Cognition” is thought. Reflex is not thought. Thoughtful movements indicate cognition. Breathing may be a reflexive response. Eye movements may be random. Intentional winking, when a person is asked to wink, requires cognition. Persistent, or permanent, vegetative state basically means there is no evidence of cognition. The concurring opinion of Justice Bablitch includes a detailed definition and discussion. Justice Bablitch notes that a “persistent vegetative state” is a diagnosis and “permanent vegetative state” is a prognosis, i.e., an irreversible persistent vegetative state.

Table of Contents

Course #1

In the Matter of Claire Conroy 486 A.2d 1209, 48 A.L.R.4th 1, 53 USLW 2372 (New Jersey 1985)

In re Michael Martin 538 N.W.2d 399 450 Mich. 204, 64 USLW 2156, 7 NDLR P 165 (Mich. 1995)

Course #2

In the Matter of the Guardianship and Protective Placement of Edna M.F. 563 N.W.2d 485 (Wis. 1997)

Conservatorship of the Person of Robert Wendland (August 9, Cal. 2001)

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In the Matter of the Guardianship and Protective Placement of Edna M.F.[3] 563 N.W.2d 485 (Wis. 1997)[4]

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Death - May a Guardian End a Ward's Life Support? (#2) (2002-3)

Don’t Ask, Don’t Tell, Just Remove the Tube

Edna’s medical condition is discussed in the concurrences which are must reading. This is a “pass the buck” case in which the court expresses its opinion, avoids responsibility, and suggests that the guardian can try again without asking the court.

Edna Timeline

1988 Permanent feeding tube is surgically implanted.

1994 Ethics Committee Approves removal of feeding tube.

1994 1994 Statement, Medical Aspects of the Persistent Vegetative State was published by the Multi-Society Task Force on Persistent Vegetative State,

1995 Petition filed in trial court.

1997 Opinion issued by Wisconsin Supreme Court[5]

“¶1 DONALD W. STEINMETZ, Judge.

“Betty Spahn (Spahn) seeks review of a decision by the Circuit Court for Wood County, Judge Dennis D. Conway, denying her request to withdraw artificial nutrition from her sister, Edna M.F. The court held that it was without authority to grant Spahn's request because Edna is not in a persistent vegetative state. This case presents this court with two issues:

“¶2 1 Whether the guardian of an incompetent person who has not executed an advance directive and is not in a persistent vegetative state has the authority to direct withdrawal of life sustaining medical treatment from the incompetent person; and

“¶3 2) Whether in this case, notwithstanding the fact that she is not in a persistent vegetative state, there is a clear statement evidenced in the record of Edna's desire to die rather than have extreme measures applied to sustain her life under circumstances such as these.

“¶4 Relying on this court's previous decision in In re Guardianship of L.W.[6] we hold that a guardian may only direct the withdrawal of life-sustaining medical treatment, including nutrition and hydration, if the incompetent ward is in a persistent vegetative state and the decision to withdraw is in the best interests of the ward. We further hold that in this case, where the only indication of Edna's desires was made at least 30 years ago and under different circumstances, there is not a clear statement of intent such that Edna's guardian may authorize the withholding of her nutrition.

“¶5 Edna M.F. is a 71-year old woman who has been diagnosed with dementia of the Alzheimer's type. She is bedridden, but her doctors have indicated that she responds to stimulation from voice and movement. She also appears alert at times, with her eyes open, and she responds to mildly noxious stimuli. 1[7] According to these doctors, her condition does not meet the definition[8] of a persistent vegetative state. In 1988, a permanent feeding tube was surgically inserted in Edna's body. Edna currently breathes without a respirator, but she continues to receive artificial nutrition and hydration. Edna's condition is not likely to improve.

“¶6 Edna's sister and court-appointed guardian, Betty Spahn, seeks permission to direct the withholding of Edna's nutrition, claiming that her sister would not want to live in this condition. However, the only testimony presented at trial regarding Edna's views on the use of life-sustaining medical treatment involves a statement made in 1966 or 1967. At that time, Spahn and Edna were having a conversation about their mother, who was recovering from depression, and Spahn's mother-in-law, who was dying of cancer. Spahn testified that during this conversation, Edna said to her: "I would rather die of cancer than lose my mind." Spahn further testified that this was the only time that she and Edna discussed the subject and that Edna never said anything specifically about withholding or withdrawing life-sustaining medical treatment.

One relative did not sign a consent. That is not the same as disagreeing. No one affirmatively disagreed.

“¶7 In October of 1994, the Ethics Committee at the Marshfield Nursing and Rehabilitation, the facility where Edna lives, met to discuss the issue of withholding artificial nutrition from Edna. The committee approved the withholding of the nutrition if no family member objected. However, one of Edna's nieces refused to sign a statement approving the withdrawal of nutrition.

Since no one opposed removal, the court appointed an attorney to argue against removal.

“¶8 On January 12, 1995, Spahn filed a petition in Wood County Circuit Court as guardian of an incompetent person, Edna M.F., asking the court to issue an order confirming Spahn's decision to withhold nutrition from Edna. On January 13, 1995, the court appointed Mark Wittman (Wittman) as the guardian ad litem. The court denied Spahn's petition. The case is now before this court on a petition to bypass the court of appeals. However, because both Spahn and Wittman are arguing to withhold nutrition, this court has appointed Attorney Howard Eisenberg as respondent-designate to argue for sustaining the life of Edna M.F.

“¶9 The issue of the right to terminate life-sustaining medical treatment first came to the national forefront in the controversial case In re Quinlan.[9] In Quinlan, Joseph Quinlan petitioned the court to be appointed guardian of his 21-year old daughter, Karen. Karen was in a chronic persistent vegetative state 2[10] and her father sought the express power to authorize "the discontinuance of all extraordinary medical procedures now allegedly sustaining Karen's vital processes and hence her life...."[11] Because Karen existed in a persistent vegetative state, and there was no hope of her ever recovering from this state, the court granted Joseph Quinlan's requests.[12]

“¶10 Fourteen years later, the United States Supreme Court considered whether the state of Missouri could require clear and convincing evidence of an incompetent's wishes before authorizing the withdrawal of life-sustaining medical treatment, including nutrition and hydration, when the incompetent is in a persistent vegetative state. 3[13] Cruzan v. Director, Missouri Department of Health[14] In making its decision, the Court determined that the states have an interest in protecting the lives of their citizens and that that interest is demonstrated, among other ways, "by treating homicide as a serious crime."[15] On the other hand, the Court notes that "[i]t cannot be disputed that the Due Process Clause protects an interest in life as well as an interest in refusing life-sustaining medical treatment."[16] The Court concludes that the rights of the state and the individual must be balanced: "we think a State may properly decline to make judgments about the 'quality' of life that a particular individual may enjoy, and simply assert an unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual."[17]

“¶11 The Court upheld the decision of the Missouri Supreme Court to require that a guardian meet a "clear and convincing" standard before terminating an incompetent's life-sustaining medical treatment, including artificial nutrition and hydration. 4[18] The Court explained that these life-and-death decisions have great consequences, and that an erroneous decision to terminate cannot be remedied:

An erroneous decision not to terminate results in a maintenance of the status quo; the possibility of subsequent developments such as advancements in medical science, the discovery of new evidence regarding the patient's intent, changes in the law, or simply the unexpected death of the patient despite the administration of life-sustaining treatment at least create the potential that a wrong decision will eventually be corrected or its impact mitigated. An erroneous decision to withdraw of life-sustaining treatment, however, is not susceptible to correction.[19]

“¶12 Two years after the Cruzan decision was rendered, this court was faced with a similar case, In re Guardianship of L.W..[20] In L.W., this court considered the issue of whether an incompetent individual in a persistent vegetative state has the right to refuse life-sustaining medical treatment, including nutrition and hydration. The court further considered whether a court-appointed guardian may exercise that right on behalf of the incompetent patient. This court began its analysis of the situation with an exploration of the possible constitutional rights implicated by these circumstances, and concluded "that an individual's right to refuse unwanted medical treatment emanates from the common law right of self-determination and informed consent, the personal liberties protected by the Fourteenth Amendment, and from the guarantee of liberty in Article I, section I of the Wisconsin Constitution."[21]

“¶13 This court further concluded that the right to refuse unwanted treatment applies to both competent and incompetent individuals, and that the right of the incompetent to refuse may be exercised by his or her guardian.[22] The court in L.W. then faced the choice of what standard the guardian should apply in determining whether to continue life-sustaining medical treatment. The guardian argued for a subjective test considering the ward's past values, wishes, and beliefs (the "substituted judgment" standard), and the guardian ad litem argued in favor of the standard upheld in Cruzan requiring "clear and convincing evidence" of the ward's desires. Noting that this court has rejected the substituted judgment standard in the past 5[23] and that the clear and convincing evidence standard would be too strict, this court concluded that an objective "best interests" standard was the appropriate standard to apply when deciding whether to withdraw life-sustaining medical treatment from an incompetent ward in a persistent vegetative state.[24] The only thing that matters in the decision-making process is what would be in the ward's best interests.[25] Of course, the court noted, if the wishes of the ward are clearly evidenced, then it is in the best interests of the ward to have his or her wishes honored.[26]

“¶14 In sum, this court concluded in L.W. "that an incompetent individual in a persistent vegetative state has a constitutionally protected right to refuse unwanted medical treatment, including artificial nutrition and hydration," and that a guardian may consent to withholding or withdrawal of such treatment without prior approval of the courts if to do so is in the "best interests" of the ward.[27] However, this court stressed the fact that the opinion in L.W. "is limited in scope to persons in a persistent vegetative state."[28]

“¶15 Spahn asks this court to extend L.W. beyond its current scope to include incompetent wards who are not in a persistent vegetative state. Spahn notes that in L.W., this court concluded that the right to refuse unwanted medical treatment applies to competent and incompetent people alike, even if there has been no advance directive on the part of the incompetent ward.

“¶16 In the case In re Guardianship of Eberhardy,[29] this court was faced with the request to authorize a guardian of an incompetent to consent to the sterilization of the incompetent, a mentally disabled woman. The guardian argued that since the competent person has the right to sterilization, that right should not be withheld from the incompetent. This court explained in Eberhardy that even though all citizens have the same constitutional rights, the United States Supreme Court has recognized that "the uninhibited exercise of those rights may be hedged about with restrictions that reflect the public policy of protecting persons of a distinct class."[30] For example, this court notes that the Supreme Court has recognized that the decision by a minor to have an abortion could be circumscribed by action requiring a showing of maturity or "best interests" to make a decision without parental involvement.[31] Additionally, a state may require a physician to notify a minor's parents before agreeing to perform an abortion.[32]

“¶17 The Eberhardy court proceeded to explain that the mentally disabled are a similar class to minors in that they are also subject to "special protections of the state" because many mentally disabled adults are "not competent to exercise a free choice."[33] The court explained that "[w]hile the Constitution would generally mandate a free choice for sui juris adults, a free choice is an empty option for those who cannot exercise it."[34]

“¶18 This brings us to the situation at hand--whether this court should allow surrogate decision makers to decide to withhold or withdraw life-sustaining medical treatment from an incompetent adult who is not in a persistent vegetative state. This court in Eberhardy said that for the purposes of sterilization, incompetent people are to be considered "a distinct class to whom the state owes a special concern."[35] So, although incompetent adults have the same constitutional rights as competent adults, they do not have the same ability to exercise those rights. Someone must instead act in the best interests of that person to make a decision regarding whether to withhold or withdraw life-sustaining treatment. However, if that person is not in a persistent vegetative state, this court has determined that, as a matter of law, it is not in the best interests of the ward to withdraw life-sustaining treatment, including a feeding tube, unless the ward has executed an advance directive or other statement clearly indicating his or her desires.

Is it logical to say that if a person is not in a vegetative state, they therefore feel pain? No. Perhaps they can, perhaps not. The courts statement is unsupported by authority or logic. Could Edna’s pain, if any, be alleviated? If a directive of a person whose pain can’t be alleviated will not be honored, are the statements of the courts which recommend directives misleading? Would the court ignore a directive by Edna? Should it? Also note that the court will not remove the feeding tube of a person who feels pain but will remove it from a person who cannot feel pain. The result is that people who feel pain will continue to do so. Is that a humane concept? Would a person wish to be preserved in a condition in which they can feel pain but not in a condition in which they can’t feel pain?

“¶19 One of the main reasons that this court in L.W. limited the scope of its holdings is the fact that The American Academy of Neurology explains that people in a persistent vegetative state do not feel pain or discomfort. L.W.[36] In the case at bar, Edna M.F. is not in a persistent vegetative state and could therefore likely feel the pain and discomfort of starving to death. Even a competent person cannot order "the withholding or withdrawal of any medication, life-sustaining procedure or feeding tube" if "the withholding or withdrawal will cause the declarant pain or reduce the declarant's comfort" unless the pain or discomfort can be alleviated through further medical means.[37] In the case where withdrawal of life-sustaining medical treatment, including nutrition or hydration, will cause pain or discomfort, then, the competent and incompetent person have exactly the same rights. 6[38]

Is this court deciding based on this case, or based on a hypothetical future case? Are future courts incapable of making proper distinctions?

“¶20 This court has established a bright-line rule in L.W. that the guardian of an incompetent ward possesses the authority to direct withholding or withdrawal of life-sustaining medical treatment, including artificial nutrition and hydration, if it is in the best interests of the ward and the ward is in a persistent vegetative state. Spahn now asks this court to extend the scope of L.W. to include those incompetent patients who are afflicted with incurable or irreversible conditions of health. We decline to go down this slippery slope, for the consequences and the confusion may be great. One author explains as follows:

“While at first euthanasia may be institutionalized only for those in terrible pain, or those who are terminally ill, or those for whom it is otherwise appropriate, the pressure of the allocation of health care resources will inevitably enlarge the class for whom euthanasia is deemed appropriate. Every society has a group who are deemed to be socially unworthy and members of that group--the uneducated, the unemployed, the disabled, for example--will become good candidates for euthanasia.[39]

“This court has drawn a bright-line in L.W., and we will not venture down the slippery slope of extending it when there is insufficient evidence of the ward's desires.

“¶21 Even though Edna M.F. is not currently existing in a persistent vegetative state, if her guardian can demonstrate by a preponderance of the evidence a clear statement of Edna's desires in these circumstances, then it is in the best interests of Edna to honor those wishes. 7[40] [41] The reason this court requires a clear statement of the ward's desires is because of the interest of the state in preserving human life 8[42] and the irreversible nature of the decision to withdraw nutrition from a person. This court explained the magnitude of this type of decision as compared to other, less permanent, decisions in Eberhardy:

Importantly, however, most determinations made in the best interests of a child or an incompetent person are not irreversible; and although a wrong decision may be damaging indeed, there is an opportunity for a certain amount of empiricism in the correction of errors of discretion. Errors of judgment or revisions of decisions by courts and social workers can, in part at least, be rectified when new facts or second thoughts prevail....Sterilization as it is now understood by medical science is, however, substantially irreversible.[43]

“Like sterilization, the decision to withdraw life-sustaining medical treatment is also not reversible, because death is not reversible. It is for this reason, then, that we require a guardian to show a clear statement of the ward's desires by a preponderance of the evidence.

“¶22 We now turn to the case at bar to determine whether there is sufficient evidence in the record to reflect a clear statement of desire by Edna M.F. while she was still competent. The trial court did not make an explicit factual finding as to whether the guardian met this burden. However, it did mention in its memorandum decision that none of the witnesses who presented letters and affidavits to the court ever discussed the matter with Edna M.F., and that the only testimony as to Edna's opinions on the situation dates back to 1966 or 1967. Generally, findings of fact shall not be set aside unless they are clearly erroneous,[44] but in a situation where there are no explicit factual findings, "this court may affirm the judgment if '[a] perusal of the evidence shows that the court reached a result which the evidence would sustain if specifically found.' "[45]

Does the court create an impossible test? Must a person specify their precise future condition? How specific must they be? Do directives contain the level of specificity this court requires? If not, do they have any effect?

“¶23 The record speaks very little to what Edna's desires would be under the current circumstances. We know from the record that she was a vibrant woman, a gifted journalist, and a devout Roman Catholic. We know that she was and is loved dearly by her family and friends, and that the majority of them feel that she "would not want to be kept alive" in this condition. We know that in 1966 or 1967 during a time of family crisis, she said that she "would rather die of cancer than lose [her] mind." But we do not have any clear statement of what her desires would be today, under the current conditions. Her friends and family never had any conversations with her about her feelings or opinions on the withdrawal of nutrition or hydration, and she did not execute any advance directives expressing her wishes while she was competent.

“¶24 There is a presumption that continuing life is in the best interests of the ward.[46] The only evidence in the record of Edna's desires is the general statement she made to her sister in 1966 or 1967. We understand how difficult Edna's illness has been on her loved ones, and we sympathize with their plight, but the evidence contained in the record is simply not sufficient to rebut the presumption[47] that Edna would choose life. A perusal of the record and the insufficiency of the evidence contained therein supports the result the trial court reached, even though there was no explicit factual finding by the trial court on this issue.

“¶25 In conclusion, this court declines to extend the scope of L.W. beyond those incompetent wards who are currently in a persistent vegetative state; we will not apply L.W. to those with incurable or irreversible conditions. As such, we re-affirm the decision of this court in L.W. that the threshold at which this court will authorize the withholding or withdrawal of life-sustaining medical treatment is the point at which trained medical doctors diagnose a patient as being in a persistent vegetative state.

Is the court passing the buck to the doctor? Is the court encouraging the doctor to lie? May the ward shop for a doctor who will find a persistent vegetative state? Is the court avoiding responsibility by placing the responsibility, and liability, upon the doctor? Is the doctor exposed to liability? What happens if the doctor passes the buck back to the court by insisting on a court order? What happens in a situation like the case at bar in which one relative refuses to consent and the medical people require all to consent? Can the doctor or institution be sued for refusing to remove the tube? Will the court refuse the case? Can the court really avoid these cases?

“¶26 Whether or not a patient is in a persistent vegetative state is a medical, not legal, determination. If Edna M.F.'s doctors determine she is now in a persistent vegetative state and the guardian determines that it is in the best interest of Edna, she may be authorized to withhold nutrition and hydration. As it now stands, however, the facts of this case do not support a finding that Edna M.F. is in a persistent vegetative state. That is the rule of L.W. and we decline to extend that rule.

The holding. A persistent vegetative state is a prerequisite. Many questions are raised by this holding. How “recent” is recent? What is the “best interest”? What “circumstances” are not “different” and what is a“clear” statement?”

“¶27 Consequently, we hold that a guardian may only direct the withdrawal of life-sustaining medical treatment, including nutrition and hydration, if the incompetent ward is in a persistent vegetative state and the decision to withdraw is in the best interests of the ward. We further hold that in this case, where the only indication of Edna's desires was made at least 30 years ago and under different circumstances, there is not a clear statement of intent such that Edna's guardian may authorize the withholding of her nutrition.

“The decision of the Wood County Circuit Court is affirmed.

“¶28 SHIRLEY S. ABRAHAMSON, Chief Justice (concurring).

“I join in the mandate. I agree that In the Matter of Guardianship of L.W.,[48] should not be extended to persons not in a persistent vegetative state. 1[49]

“¶29 I write separately because I believe (1) that the majority opinion's characterization of Ms. F.'s condition is incomplete and (2) that further discussion of the application of L.W. to the present case is needed.

“¶30 I write first to explain my disagreement with the majority opinion's characterization of some parts of the record.

“¶31 The majority's discussion of Ms. F.'s condition does not do justice to the factual record. The majority describes Ms. F. as bedridden, responsive to stimulation and appearing alert at times. While this description is true, it conveys an inaccurate picture of Ms. F.'s medical situation. Ms. F. breathes without assistance but in all other respects is dependent on others for her care and continued existence. Ms. F.'s muscles have deteriorated to the point where her limbs are contracted and immobile. She demonstrates no purposeful response, such as withdrawal, to tactile, aural or visual stimuli; she makes non-specific responses to pinching or tapping of the arm or sternum. There is also some testimony suggesting Ms. F. occasionally may track movements in the room with her eyes.

“¶32 Two attending physicians testified; only Dr. Erickson, however, was asked to opine on whether Ms. F. was in a persistent vegetative state at the time of his examination of her. Dr. Erickson testified as follows:

The definition [of persistent vegetative state] as described in the journal of neurology in 1989, January, 1989, requires that there be no behavioral response whatsoever over an extended period of time, and that no voluntary action or behavior of any kind is present. As I testified before, Edna, in my opinion, has provided evidence of some minimal response to stimulation from her surrounding, and so in the strict definition, I would have to say that she approximates but does not entirely meet that definition of the persistent vegetative state.[50]

“¶33 The circuit court made the following finding of fact, in accord with the guardian's position and the evidence presented: "Edna M.F. is a 71 year old woman whose mental condition approximates but does not meet the clinical definition of persistent vegetative state." Given the record in this case the circuit court's finding that Ms. F. is not in a persistent vegetative state is not clearly erroneous.2[51]

“¶34 The other important factual question is whether Ms. F. made a clear expression of her wishes regarding life-sustaining medical treatment. I agree with the majority opinion that the record supports the finding that she did not and the circuit court's memorandum decision implies such a finding. That finding is not clearly erroneous.

II.

“¶35 I have some concern about the majority opinion's characterization of several aspects of the L.W. decision.

“¶36 L.W. largely controls our decision in the present case. L.W. held that a guardian may consent to the withholding or withdrawal of life-sustaining medical treatment on behalf of one who was never competent, or a once competent person whose conduct was never of a kind from which one could draw a reasonable inference upon which to make a substituted judgment, 3 [52] when: (1) the attending physician and independent physicians determine with reasonable medical certainty that the patient is in a persistent vegetative state and has no reasonable chance of recovery to a cognitive and sentient life; and (2) the guardian determines in good faith that the withholding or withdrawal of treatment is in the ward's best interests.[53]

“¶37 I feel it necessary to state what I believe L.W. does and does not stand for and to offer further discussion of the application of L.W. to the facts of this case.

“¶38 First, L.W. held that a person's right to refuse life-sustaining medical treatment includes the right to refuse the provision of nutrition and hydration.[54] 4[55] It is therefore of no moment that the United States Supreme Court "merely assumed" this fact in Cruzan v. Director, Missouri Dep't of Health,[56] as the majority opinion states.[57] There is no longer any doubt that the provisions of nutrition and hydration by artificial means are forms of medical treatment in Wisconsin.

“¶39 Second, L.W. held that a surrogate decision maker must apply a best interests test to determine the propriety of withholding life-sustaining medical treatment to a person who was never competent or a person whose conduct while competent was never of a kind from which one could draw a reasonable inference upon which to make a substituted judgment.[58] L.W. did not establish whether a substituted judgment test or other test is appropriate to determine the propriety of withholding life-sustaining medical treatment from a person who gave indication while competent of his or her wishes regarding such treatment. Nor did L.W. address the proper test to be used when the incompetent person is not in a persistent vegetative state. L.W. was concerned with a person in a persistent vegetative state who by all indications had never been competent. There was, therefore, no basis on which a guardian or a court could make a substituted judgment and only under such circumstances did the court rule out a substituted judgment test.[59] It would be inaccurate to conclude that the substituted judgment test has been rejected in other circumstances.

“¶40 I take the majority opinion to imply that L.W. rejected the substituted judgment test for all persons in a persistent vegetative state:

Noting that this court has rejected the substituted judgment standard in the past[60] and that the clear and convincing evidence standard would be too strict, this court [in L.W.] concluded that an objective "best interests" standard was the appropriate standard to apply when deciding whether to withdraw life-sustaining medical treatment from an incompetent ward in a persistent vegetative state.[61] The only thing that matters in the decision-making process is what would be in the ward's best interests.[62]

But the court in L.W., having considered the two cases cited by the majority opinion in the present case, Pescinski and Eberhardy, stated explicitly that substituted judgment may be the appropriate test in some circumstances:

[N]either of these cases should be construed to mean that a surrogate decision maker could not make a substituted judgment or decision that was designed to carry out the wishes of the incompetent if the incompetent's wishes were knowable.... To hold that all substituted judgments are ipso facto rejected would probably constitute an unconstitutional holding for it would deprive an incompetent of the constitutional right of choice a right that is universally recognized when the choice is ascertainable.[63]

The court has no reason to address the appropriate test in the present case because according to the record Ms. F. was not in a persistent vegetative state and her wishes were not knowable. The majority opinion therefore should not be read to change or add to L.W.'s limited statement regarding the appropriate test for a court or guardian to apply in determining the propriety of withholding life-sustaining medical treatment. 5[64]