Estate Planning- Health Care Proxies and Living Wills by Rabbi Chaim Jachter


(assisted by Martin Shenkman, Esq.)

Proper estate planning includes drafting a health care proxy and a living will.  It is essential for every Orthodox Jew to sign a health care proxy and (possibly) a living will to insure that he will be treated in accordance with Halacha regarding various medical issues.  These issues include medical care administered towards the end of life, definition of death, organ donations, autopsy, burial, and other important matters.  The Halachic approach to these issues differs greatly from what is generally accepted in American society.  Moreover, since many disputes exist regarding these Halachot, steps must be taken that allow one's Rav to render a decision on these matters.  Rav Feivel Cohen (in a Shiur delivered to the Council of Young Israel Rabbis) stated that he himself signed a health care proxy, setting an example for all of us to follow.  Failing to sign a Halachically approved health care proxy and (possibly) a living will may make it difficult, or even impossible, to assure that one's health care decisions will be made in accordance with Halacha. I thank attorney Martin Shenkman for his assistance in the preparation of this essay.  I assume sole responsibility for any errors that might be contained in this discussion. 

Medical Care Administered Towards the End of Life 

Halacha absolutely forbids any form of active euthanasia.  The Shulchan Aruch (Yoreh Deah 339:1) rules that anyone who hastens death is guilty of murder.  One must take great care not to hasten the onset of death when rendering care to individuals who are very close to death (Gosseis).  For example, if touching the Gosseis would hasten death, it may be inappropriate (ibid).  Dr. Abraham S. Abraham (Nishmat Avraham Y.D. 339:3) writes that one may not administer routine hospital procedures to a Gosseis, such as taking blood pressure and temperature, if these procedures will not help him, because routine procedures may hasten death.  If there is no benefit, such procedures cannot be justified Halachically.  Indeed, Rav Hershel Schachter stated (at a symposium sponsored by the Orthodox Union in 2006) that it is never permissible to remove a ventilator from a patient (also see Teshuvot Tzitz Eliezer 13:89 and 14:81 regarding the propriety of placing a patient on a ventilator that is attached to a timer that will go off automatically and will need to be restarted).

Withholding Medical Treatment  

Halacha, generally speaking, also forbids passive euthanasia.  The Shulchan Aruch (Yoreh Deah 336:1) writes that one who withholds medical treatment is guilty of murder.  Nevertheless, Halacha might allow for passive euthanasia in extremely limited situations.  The Rama (ibid.) writes that one may remove an impediment to death.  He specifically permits asking someone to stop chopping wood if the noise is keeping a deathly ill individual from dying.  The Rama permits this because "this is not an action, but only removing an impediment [to death]."

Accordingly, although Halacha forbids withholding medical treatments, one might be permitted to eliminate impediments to death in certain limited circumstances.  Obviously, it is extremely difficult to distinguish between these two categories.  Dr. Abraham S. Abraham (Nishmat Avraham Y.D. 339:4) cites the following guidelines from Rav Shlomo Zalman Auerbach in this regard: 

We must distinguish between treatments which fulfill a person's basic needs or are accepted as routine, and treatments which are not considered routine.  For example, Halacha forbids withholding oxygen or nutrition from a patient who is suffering from cancer which has spread throughout the body and is near death, even though the patient is experiencing great pain and is suffering terribly.  If he is diabetic, one may not withhold insulin from him with the intention that he die sooner.  One may not withhold blood or antibiotics that are necessary for his care.  One may not withhold these treatments even if the intention in doing so is not to hasten the patient's death.  On the other hand, we are not obligated to administer non-routine and painful treatments, which serve only to lengthen life and do not cure the fundamental problem.  This especially applies if the patient objects to such treatment because of the suffering he would be forced to endure as a result. 

Dr. Abraham adds that if it is a hopeless situation, there is no obligation to revive a patient if doing so will merely serve to amplify the patient's suffering.  Rav Moshe Feinstein fundamentally agrees with these guidelines (Teshuvot Igrot Moshe Choshen Mishpat 2:73:1).  He cites as a proof a passage in the Gemara (Ketubot 104a) that describes the situation where Rabi Yehuda HaNassi (Rebbe) was gravely ill and suffering greatly.  His students persisted in Tefillah which kept him alive but did not cure his illness.  Rebbe’s maidservant (described in a number of places in the Gemara as a wise woman) threw a glass into the Beit Midrash to disrupt the Tefillah, at which point Rebbe died. 

The Ran (Nedarim 40 a s.v. Ein Mevakeish) approves of her actions and accordingly concludes that one may pray for the death of a gravely ill person who is suffering greatly and whom doctors are unable to heal (although one must exercise great caution before taking such a dramatic step; a Rav must be consulted before engaging in such a Tefillah).  Indeed, Rav Cohen mentioned that many Gedolim, including the Chazon Ish, would not Daven to prolong the life of one who is suffering enormously from an incurable disease.  Rav Moshe writes that the aforementioned ruling of the Rama regarding the removal of impediments to death is based on this Gemara and comment of the Ran.

Rav Shlomo Zalman (Teshuvot Minchat Shlomo 1:91:24) writes that we withhold these heroic measures if so requested by the patient.  He adds that although this is permissible, it is preferable to explain to the patient that Torah philosophy advocates living as long as possible even if one experiences pain, as is indicated in Sotah 20a (and see Rambam Hilchot Sotah 3:20) and the Mishnah (Avot 4:22) that states, “One hour of Teshuva and good deeds in this world is better than all of the world to come.”  See, however, Rashi’s comments to Shemot 15:5 s.v. Kemo Even, Teshuvot Igrot Moshe Yoreh Deah 2:174:3, and Rav Hershel Schachter’s BeIkvei HaTzon number 34.     

We should note, however, that although Rav Moshe and Rav Shlomo Zalman agree (Rav Mordechai Willig told me that he agrees with this approach; see though, Rav Hershel Schachter’s opinion cited in Tradition Summer 2000 page 46) that nutrition and oxygen should never be withheld from a patient, sometimes providing hydration and nutrition may actually harm that patient (Dr. Beth Popp made this point at the Orthodox Union symposium).  Thus, it is essential that a Rav consult the patient’s doctors and consider their input before rendering a decision.   

Who Makes the Decision? 

Rav Shlomo Zalman addresses only a situation in which the patient is capable of making the decision.  However, what should be done if the patient is incapacitated and unable to communicate his will?  Who decides his fate in such a situation?  Rav Hershel Schachter (at the symposium sponsored by the Orthodox Union) stated, based on Teshuvot Igrot Moshe C.M. 2:74:2, that in such circumstances the decision should be made by the patient’s family members who would estimate what the patient would want (also see Teshuvot Melamed LeHo’il 2:104).  Rav Schachter cautioned, though, that it is very difficult to determine the desire of the patient. 

Indeed, Rav Zev Schostak (Tradition Summer 2000 p. 50; Rav Schostak is a very experienced chaplain who has dealt with these types of situations for many years) writes, “Regrettably, families all too often project their own fears and guilt when making medical decisions on behalf of their loved one.  They feel they can no longer bear the emotional burden of the visits, the financial drain of high-tech medical care on their assets (or potential estate).”  In addition, there is great potential for dispute among family members in discerning the patient’s will in such a circumstance.  The only way to make a good decision about this matter and to avoid family fights (whose effects may last for years) is to draft a document that would state exactly what the individual would want should (Rachamana Litzlan) such a situation arise.  In addition, such documents should be reviewed and updated every few years, as people’s attitudes about such matters are subject to change. 

Interestingly, Rav Schachter was asked to share his opinion regarding the case of Terry Schiavo that attracted much attention in the media.  Rav Schachter responded that although he was not familiar with all of the details surrounding the case, he was inclined not to trust the husband’s claim that she expressed her wishes to have nutrition and hydration withdrawn in case of severe incapacitation.   

We should add that it is not always simple to obtain accurate medical information in order to make the awesome decision to withhold certain treatments.  Many advise that one seek a second expert opinion before signing a “do not resuscitate” (DNR) order.  One should not be intimidated by medical staff pressure not to seek a second opinion.  Families who have signed a DNR order should also be vigilant (and assertive, if necessary) in insuring that their loved one receives proper care even after the DNR order has been signed. 

Next week, we shall (IY”H and B”N) complete our discussion of health care proxies and living wills.  We will note that there are some Poskim who dispute the approach of Rav Moshe and Rav Shlomo Zalman.   

Important Correction to the Essay Published Two Weeks Ago 

We noted two weeks ago that in signing the Shtar Chatzi Zachar one need not inform one’s children that he has executed this document in order for it to take effect.  We must add that although the children need not be informed of the execution of this document, it would appear that the document must be delivered by the testator to someone, such as an Orthodox attorney.  In other words, it is insufficient for the testator to simply execute a Shtar Chatzi Zachar and place it among his important papers.  He must deliver it to someone trustworthy who will hold it on behalf of the beneficiary of the debt and produce it only if the Halachic heirs challenge the validity of the secular will in Beit Din.

Estate Planning– Health Care Proxies and Living Wills by Rabbi Chaim Jachter

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