The doctor and patient relationship requires some complex decisions, these days. As we become more and more able to cure the diseases that disable and kill us, and as medical technology strives to surpass the understanding of even the most sophisticated and learned among us, a curious thing is occurring. We, as a people, are demanding an ever more substantial role in the decisions that affect health, life, and, even, death. It is as if overwhelming complexity has stiffened the individual resolve of each of us to take control of these momentous decisions.

Decisions about death have become as important as decisions about treatment and cure - so important that the large majority of state legislatures have seen and passed numbers of bills concerning decisions about death. The first wave of legislation that passed through the state legislatures concerned those documents that have become popularly known as "living wills." The second wave has concentrated upon durable or springing powers of attorney for health-care decisions. The plethora of legislation has created some confusion, and the quality of the enacted bills has not always been that good. There is also a distinct lack of uniformity between the states, so that "living wills" or "durable powers of attorney" drafted in one state may not necessarily be valid in another. Since most Americans do not spend all their lives within the boundaries of one state, the lack of uniformity means that many of them will have to keep different documents for different jurisdictions. People who are retired, and who maintain winter and summer residences in different states, are particularly affected by this lack of uniformity.

The Uniform Law Commissioners made an initial effort to establish uniformity with respect to "living wills" in the original Uniform Rights of the Terminally Ill Act in 1985. In 1989, this act has been extensively revised to incorporate the notion of durable power of attorney and to provide a mechanism for obtaining consent when no document that can be called a "living will" or a "durable power of attorney" has ever been executed. It is this act that can establish the needed uniformity between the states.

The fundamental issue is to provide for consent to the maintenance or withdrawal of life-sustaining treatment when a person is in the last stages of a terminal illness, and when that person no longer has the capacity to communicate with the attending physicians. URTIA 1989 offers three alternatives that may be utilized in that situation.

The first is simply a continuation of URTIA 1985, the declaration that is popularly called a "living will." A living will is a written directive to the attending physician, written while a patient has the capacity to consider and decide on treatment, that tells the physician not to continue life-sustaining treatment in the last stages of a terminal illness. URTIA provides a form of general "living will" that can be taken verbatim, but any person can use any language that he or she wishes. To be effective, the declaration does require two witnesses.

If a person does not want to use a living will, but prefers to designate somebody else to make the decision, that kind of declaration becomes available under URTIA 1989, as well. URTIA allows the appointment of a surrogate to make the decision about withdrawing life-sustaining treatment. Again, the statute offers language that anybody can follow, but a person may use his or her own language to accomplish the same end. The declaration appointing a surrogate to make this decision must be witnessed, exactly as a "living will" must be. The designation of a surrogate is exactly the same as the designation of an attorney-in-fact under a durable power of attorney. URTIA establishes that any designation of an attorney-in-fact or of a judicially appointed guardian, is identical with appointing a surrogate decision-maker, and suffices as a declaration appointing one.

The third alternative is available if a person has not written either a "living will" or a declaration appointing a surrogate. The alternative is available to family members who may be faced with the decision when a person suffering a terminal illness is already incapacitated and in the last stages of that terminal illness. Key family members may give consent to withdraw treatment in such circumstances, in a witnessed writing. Only certain family members may give such consent, and only in a specific order of priority. An individual's spouse has the first priority. If there is no spouse, the next person able to consent is an adult child, or a majority of adult children available for consultation. If there are no children, an individual's parents are next able to consent. Siblings constitute the next class, and if nobody in any of these classes of family members is available, the nearest adult relative by blood or adoption available for consultation, has the power to consent.

These three options are available under URTIA. There are significant conditions for them to be selected, however. First, there must be a "terminal condition", which is defined an "an incurable and irreversible condition that, without the administration of life-sustaining treatment, will, in the opinion of the attending physician, result in death within a relatively short time." Second, the declarations authorized in URTIA reach only to the administration of "life-sustaining" treatment. This is defined as "any medical procedure or intervention that, when administered to a qualified patient, will serve only to prolong the process of dying." These are the only conditions which make any of these declarations operative.

An operative declaration is binding upon a physician when it is communicated to the physician. If a physician objects to withdrawal of treatment, URTIA requires the patient to be transferred into the care of a physician who will honor the declaration. A physician who follows a declaration in good faith is absolved from any liability for following it.

Two situations permit a physician to refuse to follow a declaration to withdraw treatment. The declaration of a pregnant woman cannot be given force and effect if there is a probability or development of the fetus "to the point of live birth." The second situation involves the comfort care of the patient or the alleviation of pain. The physician continues to treat for these purposes even if the dying process is prolonged.

Any declaration under URTIA may be revoked "at any time and in any manner by which the declarant is able to communicate an intent to revoke, without regard to mental or physical condition."