Swing low, sweet chariot: abandoning the disinterested witness requirement for advance directives.

I. INTRODUCTION 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.2 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.3 Thousands of people also languish in irreversible comas or persistent vegetative states due to illness or injury.4 Meanwhile, the ranks of the elderly can be expected to burgeon as Baby Boomers approach retirement age5 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"). Relatively few people, however, have executed advance directives.6 The living wills that are executed often contain ambiguous or contradictory instructions, reflecting a lack of comprehension of the medical issues and treatment possibilities involved.7 Moreover, medical decision-makers are often unaware of the existence of a patient's living will because they were not involved in the creation of the directives.8 Many of these problems can be attributed, at least in part, to the complex execution requirements required by state statutes for the execution of a valid advance directive. By imposing unnecessarily burdensome requirements on the process, state legislatures have removed the execution of advance directives from the purview of doctors and families, and shifted it to the legal profession. This shift has impacted the number, quality, and usability of these important planning tools. The most pernicious technicality in the advance directive execution process is the common requirement of so-called "disinterested witnesses." A fairly representative statute states the requirement as follows: A health care directive must be signed by the principal and that signature must be verified by a notary public or at least two or more subscribing witnesses who are at least eighteen years of age. ... At least one witness to the execution of the document must not be a health care or long-term care provider providing direct care to the principal or an employee of a health care or long-term care provider providing direct care to the principal on the date of execution. The notary public or any witness may not be, at the time of execution, the agent, the principal's spouse or heir, a person related to the principal by blood, marriage, or adoption, a person entitled to any part of the estate of the principal upon the death of the principal under a will or deed in existence or by operation of law, any other person who has, at the time of execution, any claims against the estate of the principal, a person directly financially responsible for the principal's medical care, or the attending physician of the principal.9 This particular law states, in substance, that an advance directive must either be notarized or signed by two witnesses, at least one of which may not be the patient's health care provider or one of its employees, and neither of which is the patient's attending physician, or his spouse, relative, heir, agent, or creditor, or the one responsible for the medical bills. The laws of thirty-nine states and the District of Columbia require witnesses for advance directives, and prohibit certain parties from serving in that role. Together they represent a dizzying array of permutations of those considered unfit to witness the execution of advance directives. …