History of Living Wills

Today all 50 states and the District of Columbia recognize living wills as legal documents. Advance directives, also known as living wills, appeared in the 1960s and have continued to evolve over the last 45 years. As social awareness grew from personal experience, legislators were inspired to legally recognize living wills.

1960s

Luis Kutner, a notable human rights attorney from Chicago, is credited for creating the original living will in 1967. After experiencing the long and painful illness of a close friend, he advocated for a document allowing people to express their final wishes about using medical life support treatments when nearing death.

Inspired by Kutner, Dr. Walter F. Sackett introduced a bill in Florida proposing the right to choose whether to use life-sustaining equipment. This bill was unsuccessful in 1968 and in 1973.

1970s

About the same time Dr. Sackett proposed living wills in Florida a legislator in California presented a similar bill. Barry Keene’s terminally ill mother was unable to limit end-of-life treatment, even with a signed power of attorney. Keene introduced his bill in 1974. When it passed in 1976, California became the first state that legally sanctioned living wills.

By the end of 1975 seven states had already passed similar bills, and 43 states had similar bills under consideration. By 1992 all fifty states had passed living will legislation. Once passed into law, the door opened for living wills to be challenged in court.

The Courts’ React

In 1976 the New Jersey Supreme Court heard the Karen Ann Quinlan case. At age 21 Quinlan lapsed into a persistent vegetative state after ingesting alcohol and valium at a party. Quinlan’s father fought to make legally binding treatment decisions for his comatose daughter. The court allowed the withdrawal of Karen’s mechanical ventilation so she could die. This 1976 decision included the following conditions:

• If patients are mentally unable to participate in health treatment decisions, another person may do so for them
• If health care decisions may result in the death of a mentally incompetent person then the decisions should be made by families and their physicians, not the courts
• Decisions must consider the invasiveness of the proposed treatment, and whether or not the patient will ultimately recover
• All patients have the right to refuse treatment, even if their decision hastens their death

A second landmark case about Nancy Cruzan was heard by the United States Supreme Court in 1990. Similar to Karen Ann Quinlan, a request was made to withdraw life sustaining treatment where there was no hope of recovery.

Twenty-five year old Nancy Cruzan lost control of her car. She was found lying face down in a ditch with no heartbeat or respiration. Although CPR resuscitated Cruzan, she suffered extensive brain damage from lack of oxygen. Comatose, her life was maintained by a feeding tube that provided nutrition and hydration. When the Cruzan case was presented to the courts, they found sufficient evidence to prove Nancy would not have wanted her life sustained, and ordered the feeding and hydration tube withdrawn.

Both of these cases involved young adults who were physically strong, but who were in a persistent vegetative state with no hope of recovery. These cases established separate, but complementary, legal rights:

• Quinlan: The ability to appoint a health care proxy (decision-maker)
• Cruzan: The right to execute a binding living will

The Schiavo Case (2005)

The Quinlan and Cruzan decisions came into play in Florida with the case of Terri Schiavo. Like Quinlan and Cruzan, Schiavo was only 25 years old when she experienced a full cardiac arrest. Surviving resuscitation, but left severely brain-damaged, she was sustained on tube feedings for 15 years. Schiavo’s husband, through his attorneys, succeeded in obtaining a court order allowing the feedings to end. Schiavo’s parents fought this decision unsuccessfully for 7 years. This conflict resulted in numerous legal actions and fostered public debate on the right to die.

Asked to intervene, the United States Supreme Court refused six times to hear the case. The U.S. Congress and the President attempted to enact last minute legislation changing the forum for the Schiavo case. On appeal, the Federal Court refused to allow a "breach" of the judicial system, accusing the executive and legislative branches in overstepping their authority by telling judges how to do their job. The Court stressed that judges must guard their independent role as defined by the Constitution even in the face of overwhelming individual tragedy. As ruled in 1976, decisions regarding medical treatment are for families, not the courts.

Conclusion

Early cases set the stage to establish the right to execute a legally recognized living will. The Schiavo case has shown that the right to make personal medical decisions may still be challenged in the future. A lawyer with experience drafting living wills can answer your questions today.

DISCLAIMER: This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

Learn More:

Living Wills – An Overview
Legal and Ethical Issues Surrounding End of Life Decisions
Purpose of a Living Will / Advance Care Directives
History of Living Wills
Living Wills Resource Links