After a number of delays, California's End of Life Option Act (the Act) became effective in June 2016.1 Only a few states have either legislatively or judicially approved an end of life or death with dignity option: Oregon, Washington, Vermont, Montana,2 and California. The Act is not without controversy. Some doctors believe it is a violation of the Hippocratic Oath, and many individuals and religious organizations oppose it. On the other hand, others believe in a right to choose to die in the event of terminal illness. Regardless of the views one may have on the morality of the Act, attorneys need to know how to advise clients on how it may be applied.

The Act provides a mechanism for a physician to prescribe a lethal dose of a drug to a qualified individual. The drug must be self-administered by the qualified individual; a physician may not assist. The Act uses the term "aid in dying drug," defined as a drug that may be self-administered to bring about death.3 To qualify to receive the prescription the individual must be mentally competent or have the capacity to make medical decisions, defined as having the ability to "understand the nature and consequences of a healthcare decision, the ability to understand its significant benefits, risks, and alternatives, and the ability to make and communicate an informed decision to health care providers."4

The Act is based upon the individual's ability to make and communicate an informed decision to health care providers. In this context, an "informed decision" is defined as one made by an individual with a terminal disease to request and obtain a prescription for a drug that may be self-administered to end the individual's life.5 The decision can only be made after being informed of the relevant facts by the individual's attending physician—the physician with primary responsibility for healthcare and treatment.6 The individual also must be diagnosed with a terminal disease and must voluntarily express his or her wish to receive the aid-in-dying prescription.7

California Residency

The Act only applies to California residents.8 Residency in California for purposes of the Act can only be established through one of the following: 1) possession of a California driver's license or other identification issued by the State of California, 2) registration to vote in California, 3) evidence that the person owns or leases property in California, or 4) filing of a California tax return for the most recent tax year. The California law is modeled after Oregon's Death with Dignity Act (the Oregon Act), which recites the same four factors for establishing residency.9 However, California identifies the four factors as an exclusive list while Oregon permits other factors to be used as well.

A person who becomes a California resident must obtain a California driver's license within 10 days.10 Residency is established for this purpose by voting in a California election, paying resident tuition, filing for a homeowner's property tax exemption, or "any other privilege or benefit not normally extended to nonresidents." As of July 1, 2016, and pursuant to AB 1465, an original (firsttime) applicant for a driver's license or identification card must present two acceptable documents as proof of California residency in addition to meeting all other existing driver license and identification card requirements.11 (See accompanying sidebar "Documents Accept able as Proof of California Residency" on page 12 for a list of documents the state has approved to provide proof of California residency.) All residency documents must list the applicant's first and last name, and the California residence address must match the residence address listed on the driver's license application, with the exception of the last three items on the list.

The question of residency is most often raised when determining whether an individual is subject to California income tax.12 The California Revenue and Taxation Code defines a California "resident" as either an individual domiciled in California who is "outside the state for a temporary or transitory purpose" or every individual in the state for other than a temporary or transitory purpose.13 Residency and domicile have different legal meanings. In Estate of Glassford, a California court defined "domicile" as "the concurrence of physical presence in a particular place with the intention to make that place one's home."14 To change one's domicile, a person must actually move to a new state with the intent to remain there permanently or indefinitely.15 Domicile is essentially the place in which one voluntarily establishes oneself and family, not for a limited or special purpose but with a present intention of making that place a time-fixed permanent home. Domicile is the place where, whenever absent, one intends to return.16

The concept of domicile is relevant be - cause lawyers often operate in the margins and gray areas seeking to push the boundaries for a client's benefit. Domicile is a traditional concept in the definition of a California resident that lawyers consider or utilize in order to maximize a client's benefit.

The question of residency may be important because people who have been diagnosed with a terminal illness may desire to move to California and establish domicile so that they may end their lives. Brittany Maynard's story is illustrative. In 2014, Maynard was a terminally ill California resident unable to carry out her wish to die with dignity under California law. She was 29 years old, married, and suffering from brain cancer. Upon being advised that she might have to endure morphine- resistant pain, personality changes, and potential loss of verbal and cognitive abilities, Maynard, along with her husband and family, researched the treatment and prognosis.17 Eventually, she chose to die on her own terms, but California law did not permit her to carry out her decision. Maynard moved to Oregon, which did have a death with dignity law permitting her to die on her terms when the suffering became too great.18 She ended her life on November 1, 2014. California Governor Jerry Brown spoke to Maynard three days before her death and considered her family's wishes and circumstances when deciding to sign the Act.19 However, future court decisions may bring new twists to long-standing concepts of California residency and domicile.

The Act seeks to simplify the complex definition of a California resident for the particular purpose of seeking relief under the Act. Time will tell as to how this will interact with California's long-standing notions, laws, and precedents defining a California resident. The Act already interacts with existing law— for example, the requirement that a person becoming a California resident obtain a driver's license within 10 days. This requirement would be based upon the traditional notions of when a person is a California resident. Obtaining a driver's license is one of the means used to establish residency under the Act.

The Act requires that a qualified individual be a California resident. An understanding of the traditional notions of residency and domicile must be considered while viewing the four factors for establishing residency. For example, evidence that a person owns or leases property in California should be viewed in light of the concepts of domicile and residency. A person renting a hotel room for a night or two is not as persuasive as a person under a long-term lease.

If California courts are obliged to consider whether a person is domiciled in California and therefore meets the residency qualification, they may consider Oregon's law, which has been in effect since 1997. In Oregon, a patient must be able to establish that he or she is currently a resident of Oregon, and here is no minimum requirement of previous residency. Similar to Oregon, California does not have a minimum requirement of previous residency.20

A patient demonstrates residency by providing adequate documentation to the attending physician to verify that he or she is a current resident of Oregon. Factors demonstrating residency in Oregon include, but are not limited to: 1) possessing an Oregon driver's license, 2) a lease agreement or property ownership document showing that the patient rents or owns property in Oregon, 3) possessing an Oregon voter registration, or 4) filing a recent Oregon tax return. The California Act and that of Oregon provide that owning or leasing property is a factor in establishing residency.21 There is no meaningful guidance on what constitutes leasing property within the meaning of the Act. The definition of a lease includes a rental.22 At first blush, renting a hotel room might satisfy the requirement for a lease. However, again, a short-term rental, such as a hotel room, would not appear to evidence establishing a domicile or residency. For residency, a stronger connection is required.

Under the Oregon statute, the attending physician is charged with the responsibility for determining whether the patient adequately established residency.23 The Act is silent as to who makes the residency determination. If California follows in Oregon's footsteps, the attending physician would appear to have the authority to determine if the patient is a California resident for purposes of the Act. This may be problematic as a physician is not customarily the best professional to evaluate the subtleties of California's residency law. An attorney should consider all four factors involved in establishing residency when considering whether the patient is a California resident.

Making Formal Requests

In addition to the residency requirement, an attorney should consider several other important issues when providing advice to a client. In particular, for example, California requires that the individual seeking to qualify for an end-of-life prescription must follow a procedure of formal request. The request cannot be made through a power of attorney, advance health care directive, conservator, health care agent, or any other legally recognized health care decision maker. An individual seeking assistance must make three personal requests directly to his or her attending physician. Two of the requests must be verbal and made at least 15 days apart. A separate written request must also be made to the attending physician. The physician must personally receive the requests and may not use a designee.24 Section 443.11 of the Health and Safety Code provides the form for the request. The request must be signed and dated in the presence of two witnesses. Only one of the witnesses may be related to the individual or own, operate, or be employed by the health care facility in which the individual resides or provides treatment, or be entitled to a portion of the person's estate upon death.25 The attending physician, consulting physician, or mental health specialist for the individual may not be a witness.

Each witness must indicate to the best of his or her knowledge and belief that 1) the individual is personally known or has provided proof of identity to the witness, 2) the request was voluntarily signed, and 3) the individual was under sound mind and not signing under duress, fraud, or under the influence.26 While the individual must be mentally competent to make the request, the request may be withdrawn at any time without regard to the individual's mental state.27 Mental capacity or competency is determined by the attending physician under the Act.28

The written language of the request must be written in the same translated language as any conversations, consultations, or interpreted conversations or consultations between a patient and his or her attending or consulting physicians.29 The written request may be prepared in English even when the conversations or consultations or interpreted conversations or consultations were conducted in a language other than English if the English language form includes an attached interpreter's declaration that is signed under penalty of perjury.

If an interpreter is needed, he or she cannot be related to the qualified individual by blood, marriage, registered domestic partnership, adoption, or be entitled to a portion of the individual's estate upon death. In addition, the interpreter must meet the standards promulgated by the California Healthcare Interpreting Association or the National Council on Interpreting in Health Care or other standards deemed acceptable by the department for health care providers in California.30

Assessing Legal Capacity

The attending physician must determine whether the individual has the legal capacity to make medical decisions. Before prescribing the patient, the attending physician must make a determination regarding whether the requesting adult has the capacity to make medical decisions. If there are indications of a mental disorder, the physician must refer the individual for a mental health specialist assessment. If a mental health specialist assessment referral is made, no aid-in-dying drugs may be prescribed until the mental health specialist determines that the individual has the capacity to make medical decisions and is not suffering from impaired judgment due to a mental disorder.31 The physician must also determine whether the requesting adult has a terminal disease and whether the requesting adult voluntarily made the request for an aid-in-dying drug.32

The attending physician must also confirm with the individual that he or she is making an informed decision by discussing whether the requesting adult is a qualified individual pursuant to subdivision o of Section 443.1 and confirming that the individual is making an informed decision by discussing with him or her all of the following: 1) the individual's medical diagnosis and prognosis, 2) the potential risks associated with taking the drug to be prescribed, 3) the probable result of taking the drug to be prescribed, 4) the possibility that the individual may choose not to obtain the drug or may obtain the drug but may decide not to ingest it, and 5) the feasible alternatives or additional treatment opportunities, including, but not limited to, comfort care, hospice care, palliative care, and pain control.

The attending physician is also required to refer the individual to a consulting physician for medical confirmation of the diagnosis and prognosis, and for a determination that the individual has the capacity to make medical decisions and has complied with the Act's other provisions.33 The attending physician must also confirm that the qualified individual's request does not arise from coercion or undue influence by another person by discussing with the qualified individual, outside of the presence of any other persons, except for an interpreter as required pursuant to this part, whether or not the qualified individual is feeling coerced or unduly influenced by another person.34

The individual also should understand and be advised by the attending physician of the importance of 1) having another person present when he or she ingests the aid-in-dying drug prescribed, 2) not ingesting the aid-in-dying drug in a public place, 3) notifying the next of kin of his or her request for an aid-in-dying drug (a qualified individual who declines or is unable to notify next of kin shall not have his or her request denied for that reason), 4) participating in a hospice program, and (5) maintaining the aid-in-dying drug in a safe and secure location until the time the qualified individual will ingest it.35

The attending physician must also inform the individual that he or she may withdraw or rescind the request for an aid-in-dying drug at any time and in any manner. In addition, the physician must verify, immediately before writing the prescription for an aid-in-dying drug, that the qualified individual is making an informed decision. Once the physician has confirmed that all requirements are met and all appropriate steps are carried out in accordance with the Act, he or she must write a prescription for an aid-in-dying drug. The attending physician must refer the individual to a mental health specialist for an assessment if there are indications or symptoms of a mental disorder. The attending physician must confirm that the individual is making an informed decision and must discuss with him or her the medical condition risks associated with ingesting the aid-in-dying drug and the possibility of not using the drug after it is requested.

A second physician—the consulting physician— independent from the attending physician must confirm the diagnosis, prognosis, mental capacity of the individual, and all requirements of the Act. The consulting physician independently: 1) examines the individual and his or her relevant medical records; 2) confirms in writing the attending physician's diagnosis and prognosis; 3) determines and reaffirms that the individual has the capacity to make medical decisions, is acting voluntarily, and has made an informed decision;(4) refers the individual for a mental health specialist assessment if there are indications of a mental disorder; 5) fulfills the record documentation required under Section 443.7; and (6) submits the compliance form to the attending physician.36

Afterward, the attending physician must provide a final attestation form to the individual. The individual must complete this form within 48 hours prior to self-administering the aid-in-dying drug. The individual is not required to inform his or her family of the decision.

The Act and Estate Plans

When working with terminally ill clients, trust and estate law attorneys should discuss the Act with clients and help them prepare for the process. The Act specifically precludes making a decision under the End of Life Option Act by means of a power of attorney, health care directive, or similar document. Also, the specific requirements of the Act for capacity and general compliance would seem to minimize the effectiveness of any such provision. For out-of-state clients, attorneys should consider including a provision in both powers of attorney and health care directives to authorize a change in the client's domicile to be made by the agent. This will allow clients to change their domiciles more easily if necessary.

Changes in domicile may become increasingly important as the aging population increases. A change in domicile to a lower cost and/or lower-tax state may reassure clients that they will not run out of money during their lifetimes. At least one court has held that a change in domicile may not be made on a power of attorney.37 The court determined that the concept of domicile is too personal to be made on a power of attorney as it relates to the individual's subjective intent. Including the provision in the power of attorney for financial purposes, separate powers of attorney for personal care and the health care directive may minimize this argument.

John M. Goralka, of the Goralka Law Firm in Sacramento, is a certified specialist in taxation and in estate planning, trust, and probate law. Kiran K. Dhillon is an attorney with the Goralka Law Firm specializing in estate and income tax planning, business and corporate law, and trust and probate.

 

1 HEALTH & SAFETY CODE §§443 et seq. See also

George Skelton, 'Right-to-die' Act Hangs in Limbo

Amid Special Sessions' Inaction, L.A. TIMES (Oct. 19,

2015), http://www.latimes.com.

2 Montana does not have a death with dignity statute,

but the end of life option is legal in that state pursuant

to a ruling by the Montana Supreme Court. Baxter v.

Montana, 224 P. 3d 1211 (2009).

3 HEALTH & SAFETY CODE §443.1(b).

4 HEALTH & SAFETY CODE §443.1(e).

5 HEALTH & SAFETY CODE §443.1(i).

6 Id.

7 HEALTH & SAFETY CODE §443.2(a)(1), (2).

8 HEALTH & SAFETY CODE §443.2(a)(3).

9 OR. REV STAT. §§127.800-.897.

10 How to apply for a driver license if you are over 18,

State of California Dep't of Motor Vehicles, available

at https://www.dmv.ca.gov/portal/dmv/detail/dl/dl_info

(last visited Dec. 30, 2016).

11 California Residency Requirement for New Driver

License (DL) and Identification Card (ID) Applicants,

State of California Dep't of Motor Vehicles, available

at https://www.dmv.ca.gov (last visited Dec. 30, 2016).

All documents acceptable as proof of California residency—

of which two are required—are listed at this

website.

12 REV. & TAX. CODE §17041(a).

13 Id.

14 Estate of Glassford, 114 Cal. App. 2d 181, 186

(1952).

15 Id.

16 Meaning of Domicile, FTB Publication 1031 Guide -

lines for Determining Resident Status, State of Cali f -

ornia Franchise Tax Bd. (2011), available at https://www

.ftb.ca.gov (last visited Dec. 30, 2016).

17 Brittany Maynard, My Right to Death with Dignity

at 29, CNN (Nov. 2, 2014), http://www.cnn.com

/2014/10/07/opinion/maynard-assisted-suicide-cancer

-dignity.

18 Id.

19 Patrick McGreevy, After Struggling, Jerry Brown

Makes Suicide Legal in California, L.A. TIMES (Oct.

5, 2015), http://www.latimes.com.

20 HEALTH & SAFETY CODE §443.2(a)(3).

21 HEALTH & SAFETY CODE §443.2(a)(3)(C); OR. REV

STAT. §127.860.

22 Civ. Code §1954.26(e).

23 OR. REV STAT. §127.815.

24 HEALTH & SAFETY CODE §443.3(a).

25 HEALTH & SAFETY CODE §443.3(c).

26 HEALTH & SAFETY CODE §443.3(b)(3).

27 HEALTH & SAFETY CODE §443.4(a).

28 HEALTH & SAFETY CODE §443.1(e)

29 HEALTH & SAFETY CODE §443.11(b)(1).

30 HEALTH & SAFETY CODE §433.11 (b)(3).

31 HEALTH & SAFETY CODE §443.5(a).

32 HEALTH & SAFETY CODE §§443.2-443.3.

33 HEALTH & SAFETY CODE §443.5(a)(3).

34 HEALTH & SAFETY CODE §443.5(a)(4).

35 HEALTH & SAFETY CODE §443.5(a)(5).

36 HEALTH & SAFETY CODE §443.6.

37 Matter of Wilhelm, 134 Misc. 2d 448 (1987).

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