Colorado Probate Blog - Wade Ash Woods Hill & Farley, P.C.

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Colorado's New Law: The End-of-Life Options Act

This election season was full of interesting contests and a few surprises. If you were following the issues in Colorado, you saw an array of familiar ballot initiatives dealing with legalized marijuana, funding for the Scientific and Cultural Facilities District, and of course, heated contests between diametrically opposed candidates. But you also saw the passage of a ballot initiative that will only directly affect a limited portion of the population, but is intended to provide that small group with an alternative to suffering through a painful terminal illness.

Proposition 106, which will become law in Colorado in January, 2017, creates a statutory scheme that provides adults who have been diagnosed with a terminal illness and six months or less to live the right to request and self-administer lethal medication in order to end their lives.

It sounds simple, but it is quite a bit more complicated than that. Opponents saw countless practical and ethical problems with the law. Proponents attempted to address the complexities associated with such a personal and irreversible decision by providing sufficient checks and balances. The result is the Colorado End-of-Life Options Act.

The statutory scheme, which will be located in the Colorado Revised Statutes at § 25-48-101 et seq., operates in a manner intended to prevent abuse and misapplication of the process. The various safe-guards built into the statute include a Colorado residency requirement, a written request witnessed by at least one disinterested party, the agreement of two physicians regarding diagnosis, prognosis, and capacity, a potential professional mental health evaluation, and meticulously informed consent. In addition, no physician or health care facility is required to carry out a request for medication under the statute and the medication must be self-administered. Finally, the statute creates a new class 2 felony offense in Colorado for anyone who forges or coerces a request for end-of-life medication or prevents a terminally ill person from rescinding his or her request.

Additional protective measures draw focus upon the policy implications of permitting a person to end his or her life intentionally. For example, the statute prohibits provisions in wills or contracts that would affect whether or not an individual may make or rescind a request for aid in dying medication. No contractual obligations can be conditioned upon or affected by a person’s request for or rescission of a request for medication under the statute. There are also various provisions that prevent an individual who makes use of the statute from being denied health care benefits and health insurance. Likewise, life and accident insurance policies are not affected by a person’s decision to request and administer lethal medication under the statute.

Colorado is only the sixth state to address this issue. Four other states have similar statutes and one other state’s supreme court has addressed the issue and permitted physicians to prescribe medication to hasten a terminally ill person’s death. Colorado’s statutory scheme will surely be tested over the years. While it is difficult to predict how and by whom the operation of the statute may be challenged, there is at least one area that could see potential litigation.

While it is not clear who would have standing to challenge a person’s request for medication under the statute, it is reasonable to anticipate potential challenges in relation to mental capacity and the informed nature of a decision to request life-ending medication. Any physician who is considering honoring a request by a terminally ill patient must ensure that the individual is making an “informed decision,” which is specifically defined in the statute. In order to make an informed decision, an individual must have the mental capacity to do so.

Legally speaking, “mental capacity” can have different meanings depending on the circumstances. In order to make a valid will, for example, a person must demonstrate testamentary capacity. Testamentary capacity requires that a person understand the extent of his or her property and how the will would distribute the property, understand the natural objects of his or her bounty, and understand the nature of the act of making a will and its purpose. The person must also not be suffering from a condition that results in a persistent belief, with no existence in fact and that is adhered to against all evidence, that affects the preparation or dispositions of his or her will. In the context of criminal law, a person may be incompetent to assist in his or her own defense, but may have been mentally capable of understanding right or wrong and developing criminal intent. A person in need of a conservator may be incapable of managing property and business affairs because of an inability to receive or evaluate information or to make or communicate decisions, but may have no trouble meeting his or her daily needs and may still be deemed mentally capable of making all other decisions, including making a valid will.

The Colorado End-of-Life Options Act seeks to avoid confusion by defining “mental capacity” to mean that “in the opinion” of the participating physicians or a psychiatrist or psychologist, the requesting individual has the “ability to make and communicate an informed decision to healthcare providers.” It is a definition that is hard to apply and the statute does not address a procedure for potential challenges to capacity or who would have standing to challenge the opinion of the participating medical professionals.

It will be interesting to watch as this statute becomes a part of Colorado’s health care culture. In Oregon, where a similar statute has been in place for twenty years, there have been 1,545 requests for lethal prescriptions through eighteen years of data.

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