Estate Planning Insights – Hawaii Enacts Death with Dignity Law

Ethan R. Okura
Commentary
Hawai‘i Herald Columnist

Last month, the Hawai‘i Legislature passed a bill that gives terminally ill patients the option of taking prescription medication that will cause them to pass away peacefully in their sleep. On April 5, Gov. David Ige signed House Bill 2739, the “Our Choice, Our Care Act,” signed into law. It will take effect on Jan. 1, 2019.

Despite its almost unanimous passage, the law remains a controversial topic in many states. Taking one’s own life has been historically illegal under English Common Law. In many states, the act of suicide is considered a felony.

Over the years, however, more states have decriminalized the act of taking one’s own life. After all, how can you prosecute and punish someone for successfully breaking the law?

Regardless, it is still a crime in most states to help someone take their own life by providing them with the means to accomplish it or by participating in a physical act by which another person commits suicide. In some cases, it is even a crime to simply encourage someone to take their own life.

In 1994, Oregon became the first state in the nation to enact a Death With Dignity Act, making it legal for a mentally competent, terminally ill adult with a prognosis of six months or less to live to receive prescribed medication that allows the patient to pass away peacefully. The law was strongly opposed: There was a federal court injunction against it, and U.S. Attorney General John Ashcroft declared that it violated the Controlled Substances Act.

Many people will remember the name of Dr. Jack Kevorkian, the physician who brought national attention to the issue after he helped at least 130 patients end their lives. At the time, the death with dignity legislation hadn’t yet passed. Dr. Kevorkian believed that it was humane to allow people to have a choice and control over how to end their own life when nature was not giving them the choice to continue to live. He was prosecuted and jailed for his role in facilitating some of those deaths. Oregon’s law passed at the height of Dr. Kevorkian’s exposure.

In 2008, Washington became the second state to enact “death with dignity” legislation. It was followed by California, Vermont, Colorado, the District of Columbia — and now Hawai‘i. All of these states give their citizens this choice. The Montana Supreme Court legalized it judicially rather than legislatively.

Hawai‘i’s law includes safeguards to prevent its use in the case of abuse, coercion and depression. The following are its requirements:

• The patient must be over the age of 18, mentally capable and a resident of the state of Hawai‘i.

• The patient may request a prescription for medication to end his or her life twice by oral communication at least 20 days apart, and once in writing.

• The three aforementioned requests must be made directly to the patient’s attending physician by the patient and not by an agent on behalf of the patient.

• The written request must be signed by two witnesses, at least one of whom is not a relative; will not inherit anything following the patient’s death; and is not an employee, owner, or operator of a health care facility where the patient is residing or receiving treatment. Additionally, the attending physician cannot be a witness.

• Prior to prescribing the medication, the physician must refer the patient to a psychiatrist, psychologist or clinical social worker for counseling to verify that the patient is capable and not suffering from depression without adequate treatment.

• The patient must be provided the opportunity to change his or her mind and must be informed of such rights, after which if the patient wishes to continue, the patient may administer the prescribed medication to himself or herself.

• Finally, it is a Class A felony for anyone else to make or alter a request for the prescription on behalf of the patient; or to hide or destroy documentation that the patient wishes to rescind the request; or to coerce or induce a patient to request the prescription by fraud, threat or intimidation.

Although there are a few other details in this 40-page bill, this column covers the gist of what was passed into law by the Hawai‘i Legislature. The nice thing about this law is that it allows those who are suffering to have another option should they want it. It can be heartbreaking to listen to a loved one suffer when he or she knows that it will soon end painfully anyway and feels powerless to do anything about it. I believe that giving people control over their health care and their destinies — even in choosing to end their own life — is the humane thing to do.

© OKURA & ASSOCIATES, 2018
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Ethan R. Okura received his doctor of jurisprudence degree from Columbia University in 2002. He specializes in estate planning to protect assets from nursing home costs, probate, estate taxes and creditors.

This written advice was not intended or written to be used, and it cannot be used by any taxpayer, for the purpose of avoiding penalties that may be imposed on the taxpayer. (The foregoing legend has been affixed pursuant to U.S. Treasury Regulations governing tax practice.)

This column is for general information only. The facts of your case may change the advice given. Do not rely on the information in this column without consulting an estate planning specialist.

See more articles by Ethan by visiting https://okuralaw.com/blog/