Recently, Brittany Maynard, who had advocated for the right to “Death with Dignity” died by choosing to take the medication designed to hasten her death and prescribed by a physician. Maynard had lived in California and was diagnosed with brain cancer. Maynard chose to move to Portland, Oregon, because Oregon allows Death with Dignity while California does not. Here is the link to CNN’s story.
“Death with Dignity,” sometimes known as physician-assisted death or aid in dying, is legal in four U.S. states. In three of those states, Oregon, Vermont, and Washington, there are state statutes which authorize physician-assisted death, such as the Death with Dignity Act in Oregon. In the fourth state, Montana, the state Supreme Court found that there was a right consistent with the right a patient is afforded by statute in the other states. (Note also that a local trial court in Bernalillo County, New Mexico, found similarly to the Montana Supreme Court but does not have statewide applicability.) Death with Dignity is also permitted in several foreign countries, such as Luxembourg, the Netherlands, and Switzerland.
Oregon had the first statute (and the other states followed with substantially similar legislation). In Oregon, a person must be diagnosed as terminal (expected to die within 6 months) by two physicians, must have mental capacity, and must have repeatedly expressed the desire to end their lives. The physician then may prescribe the patient with the medication designed to hasten their death. Patients often choose to take this course of action because it gives them a sense of control over their own destiny. In 2013, 122 people were prescribed medication under the Oregon Death with Dignity Act while 71 people took their lives with the prescriptions.
The four U.S. states which allow physician-assisted death require that a patient be a resident of the state. However, as with Maynard, someone from another state could relocate to one of those four states. While taxes might be the last thing on a terminal patient’s mind, it should be noted that three of the four states which allow physician-assisted death have a state estate or inheritance tax. Montana is the only state which allows physician-assisted death and does not have a separate inheritance tax. So, if your terminally ill client wishes to relocate in order to have take advantage of Death with Dignity laws in another state, Montana may be the best choice, at least from a tax perspective.
Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (800) 846-1555
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