Crosses to Bear Health Care Proxies and How Religious Beliefs May Affect Them

A Massachusetts health care proxy, once properly executed, allows you to appoint another to make health care decisions for you at a time when you cannot make informed decisions about your own health care, or cannot communicate those decisions.

If the seriousness of health care decisions were to run on a continuum the size of a football field, the authority under a health care proxy would expand over about 93 of those yards. One end of the field covers the mundane decisions like whether to get a flu shot, while the other end considers insertion of a feeding tube and other life-extending treatments.

As for those final yards, they are reserved for those who leave direct instructions for a physician. One way for you to give instructions to a treating physician about life and death preferences is to articulate your preferences in the context of a health care proxy. The other is to express them in a living-will declaration, which may be its own standalone document. Either way, so long as certain requests and instructions are articulated, your physician will have the authority to act if or when the situation arises. Additionally, a do-not-resuscitate (DNR) order can be completed through your doctor’s office. While a DNR does not instruct a physician to affirmatively act, it does prohibit resuscitation or restarting of your heart.

The right to have proper health care, or the right to die and the circumstances under which you may want to terminate life support, are extremely personal. Not all treatment or end-of-life decisions are cut and dried, and there may be no obvious best decision for family and loved ones who must try to balance what they believe to be your wishes against their own tangled web of emotions at what is likely to be a very difficult time.

But how does religion impact such important decisions? What if the patient and the agent identified in a health care proxy have conflicting beliefs regarding medical treatment and end-of-life decisions?

As stated above, either the health care proxy or standalone living will can, in effect, express a preference that you want to be taken off of life-sustaining equipment if you are only being kept alive, without any real hope of your condition improving. Rather crassly, that text is interpreted to mean that, if your loved one is being kept alive only by medical machinery, then please allow him or her to die with as much dignity and least pain as possible. In other words, “please, doctor, pull the plug.”

Typically, each spouse names the other as their first agent to serve in the event that he or she can no longer make their own health care decisions or communicate them. But sometimes a conflict occurs even between married couples. Consider the following example:

What if a husband admits that if called upon to act as agent for his wife, he would do so keeping her wishes regarding medical care as his guidepost; however, if a situation arose where termination from life support would be appropriate, he makes clear that he could not and would not support her wishes based upon his own religious beliefs?

Remote as this is, the husband in this example states that he would actively seek to avoid such an eventuality. So what options does the wife have to assure that her own wishes would be respected under the worst possible circumstances? She may contemplate removing her husband as her agent and naming another family member or friend instead, one who more closely shares her vision regarding end-of-life decisions. This does, however, underscore the significance that one’s religious beliefs can have over end-of-life decisions that impact loved ones.

Estate-planning attorneys must be sensitive to issues about health care decisions as they might relate to religion and religious beliefs, and they must advise their clients to take the time to discuss health care decisions and concerns with their named agent(s) or modify their health care proxy documents to address certain issues. Admittedly, discussing religion and health care decisions in the same context can trigger emotional responses.

People respond viscerally to what they think aligns or does not align with the doctrines of their own religion. Generally, from an estate-planning perspective, health care decisions are wide-ranging, and decisions that might be attributed to specific religious beliefs should be explored to confirm exactly to how a particular client or patient would want to have them implemented.

For many Jews, the sanctity of life mitigates against suicide, assisted suicide, or euthanasia. The body is to be treated with respect both during life and after death. The Torah requires medical specialists to heal one who is ill or suffering. The Talmud actually teaches that one should live in a community where a doctor is available. For some strictly observant Jews, this may be interpreted to mean that the agent must seek all possible medical help for a loved one in order to alleviate suffering. And yet, what if the only way to alleviate a patient’s suffering is to allow the doctor to terminate life support? Is this antithetical and contrary to the client’s wishes?

To take this further still, how might a particular religious client feel about having an autopsy performed? Jewish law says that the body is to be respected and not mutilated, so how is this compatible with autopsy, even in special circumstances? In addition, what are a client’s thoughts about organ donation or cremation? Many Jews, including even those who are more liberal or reformed, remain connected to keeping the body intact, yet there are innumerable articles where rabbis and religious leaders consider organ donation a Mitzvah (charitable act) that allows another to live a healthier life, and therefore, may be allowed.

While potentially more contentious, those who are most strict, such as Orthodox Jews and some more conservative Jews, believe that abortion is permissible only when the life or health of the mother is threatened. Yet, other Jews, when asked about the issue, intellectually acknowledge that they would support abortion on a larger scale. So, what is an agent to do if called into service because a client has been raped or because a previously healthy client, pregnant in her first trimester, suddenly fell ill and is no longer capable of caring for herself, let alone a newborn? Does the agent contemplate abortion or allow the pregnancy to go full-term?

It is important to consider both your own perspective and that of your named agent should you take ill and become unable to make your own health care decisions. For example, some Orthodox Jews and Muslims are uncomfortable receiving medical care or will refuse it if it’s offered by a member of the opposite gender because their doctrine prohibits one of the opposite sex who is not a spouse from touching them. How about a client who keeps a Kosher home, related to dietary restrictions that do not allow the mixing of milk and meat at the same meal, or eating pork or shellfish? Does an agent need to remember to ask about this if the client lands in a hospital or rehab facility? While being treated by someone of the opposite gender or being fed a cheeseburger might not seem significant, these issues can impact how a client feels about himself or herself on the road to recovery.

Buddhists have their own beliefs that may impact their health care proxies. While illness and death are understood to be natural events for all living things and not feared, it is suffering that is to be relieved, all the while having a clarity of consciousness. This belief, however, may be incompatible with an end-of-life circumstance where life support is terminated to facilitate death and a patient is made comfortable with drugs that render him or her unconscious. In addition, while organ transplants, for both a donor and recipient, are generally permissible, some believe that this might affect a patient’s consciousness.

Many who practice Buddhism will also contemplate other forms of medical treatment than just the traditional Western medicine that health insurance historically covers, so that must also be considered with respect to a designated health care agent. Will that agent be supportive of the alternative treatments that the patient may want to try? When contemplating health care providers, it is wise to think about whether to instruct your agent in the type of care you might be more inclined to consider.

Relative to the Sikh religion, human life is the highest form, and assisted suicide and euthanasia are not encouraged. Further, maintaining a terminal patient on artificial life support for a prolonged time is not generally encouraged, either. Autopsy is permitted; however, it is preferred that the medical practitioner be of the same sex as the patient. And while a health care proxy does not authorize an agent to act after the patient dies, if the agent has been a presence during final stage of the patient’s life, comments by the agent may inadvertently be relied upon shortly after the patient’s death. As with many religions, there are specific funeral and cremation rituals to be followed, but if the agent is unaware of these concerns, then the body and soul could inadvertently be violated.

Christianity is the most widely practiced religion in Western Mass. Although there are variations in religious beliefs, mainstream medicine does not seem to trigger many exceptions to the rules of this religion. The obvious hot buttons are whether abortion or birth control is allowed, or whether actions may be taken to end a life. There is a very vocal sect of Catholics that are against abortion, which they consider to be the taking of life, and yet, for many others, those same issues pose less of a conundrum. Across the board, however, organ donation is endorsed, and both funerals and cremation are viable options upon death.

Although Christians are widely unaffected by many of the above hot-button issues regarding end of life, it is still important to make sure that your agent is aware of and willing to carry out your own wishes.

When naming your health care agent, consider both your own perspective and that of the person you choose. While you cannot contemplate every eventuality, think about what is important to you and what you want implemented so you can be given the best possible chance of recovery and/or the most respectful and comfortable way to die. v

Lisa L. Halbert, Esq. is an associate in the Northampton office of Bacon & Wilson, P.C. A member of the Estate Planning, Elder and Real Estate departments, she is especially focused on legal matters relating to asset protection; (413) 584-1287;baconwilson.com/attorneys/halbert