Swing Low, Sweet Chariot: Abandoning the Disinterested Witness Requirement for Advance Directives

Abstract

Advances in medical technology over the past several decades have made it possible to increase life long past the point where many patients would otherwise suffer a natural death. In the past, the most common causes of death were abrupt killers such as tuberculosis, pneumonia, and injuries. Now the average American can expect to spend the final two years of life too disabled to perform even the routine activities of life unassisted. Thousands of people also languish in irreversible comas or persistent vegetative states due to illness or injury. Meanwhile, the ranks of the elderly can be expected to burgeon as Baby Boomers approach retirement age and the number of people treated with life support technology (alternatively described as “life-preserving” and “death-prolonging”) will rise accordingly. The conventional wisdom is that most people would like to avoid such treatment, preferring to die with dignity. Advance directives ostensibly enable people to avoid this fate, by expressing their treatment decisions in advance (a “living will”), or by designating someone they trust to make treatment decisions for them (a “durable power of attorney for health care”).