“These are the times that try men’s souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country, but he that stands by it now, deserves the love and thanks of man and woman. Tis surprising to see how rapidly a panic will sometimes run through a country”*. So wrote Thomas Paine in his 1776 pamphlet “THE CRISIS”.
As in those times, today we face a tyrannical force. But unlike the times of Paine where the identity of the source which so threatened Americans’ God given rights (of life, liberty and the pursuit of happiness) was clear, the source of the tyranny that Americans need to confront today has not yet been defined. But like the times that Paine so eloquently wrote of, we face an enemy that must be defeated. For if not, our liberties which are already being constrained by those who run our state and county governments will be further eroded whether by government policies that are well-intentioned or by those that are simply governmental fiat. We are, today, threatened by forces, foreign and domestic. It is nothing new.
So uncertain are these times that it seems every person in government, whether elected or lifetime bureaucrat, have little to offer but to give advice that painfully realizes the obvious – wash your hands, don’t shake hands and don’t touch your face (i.e. don’t pick your nose). They are not to blame.
Absent from the proclamations of our politicians and civil servants is advice recommending that everyone should have a “living will”. A living will should be an integral part in one’s estate planning. In New Jersey pursuant to N.J.S.A. 26:2H-53, an advance directive for health care can be drafted and executed prior to a disabling illness or accident. It must be in writing and either witnessed by two adults (who are not being appointed a fiduciary in the document) or acknowledged by an attorney at law or a notary public. A living will is essentially a proxy directive for health care. It is a legal document, wherein one may appoint another (a health care representative) to make medical decisions on his or her behalf in the event one can not do so for themselves. Times when we may not be able to communicate our wishes to our medical care providers such as during episodes where we fall into a coma, are lacking mental capacity or even worse become brain-dead.
New Jersey took the lead in the country by passing the law. The law was passed in 1990 thanks to the foresight and wisdom of a local State Senator. It was written and sponsored by the late State Senator Gabriel M. Ambrosio (D) Lyndhurst.+ A New York Times article dated May 20, 1990, explained that Mr. Ambrosio was motivated by the massive amount of “right to die” litigation in the United States which came on the heels of the New Jersey Supreme Court decision fourteen years earlier “In re: Karen Ann Quinlan”. The public debate on the morality and legality of euthanasia had continued to rage during those fourteen years and Ms. Quinlan’s situation became the center of the “right to die” controversy. A beautiful and vibrant young woman, Ms. Quinlan was of the tender age of 21 years when she became unconscious after she consumed Valium along with alcohol while on a crash diet and lapsed into a coma, followed by a persistent vegetative state. The adopted child of devout Irish Catholics, Karen was a graduate of Morris Catholic High School. Her parents would file suit to have her removed from a ventilator. She would remain in a coma, receiving artificially provided nutrition intravenously before passing away of “natural causes” in 1985.
A living will allows one to also provide more specific advice to the person we appoint as our proxy. All living wills should provide a clear choice of one’s wishes. For example, give your proxy the authority to direct that cardio pulmonary resuscitation, artificially provided fluids and nutrition such as by feeding tube or intravenous infusion be withheld or withdrawn or to NOT give the proxy such authority. Most tend to elect to give the authority especially when considering a circumstance where they become in an irreversible coma or become brain-dead. Living wills become effective when transmitted to an attending physician or to a hospital and when there comes a time that a person is medically determined to lack the requisite mental capacity to make health care decisions. Once a person regains their capacity, they have every right to resume making their own health care decisions.
I would be remiss, if I did not point out that some consideration might be given to the alleviation of emotional burdens assumed by those we love and to the financial implications of a debilitating illness. The decisions which form the directions for a course of treatment and memorialized in a living will are often intertwined with financial considerations not just for us (the patient) but for our posterity.
Perhaps while we are waiting on a long line at Costco to buy T.P., one might consider getting their affairs in order. There will always be plenty of T.P. I am assured of this by the management of the Marcal Paper factory in Elmwood Park, a scant four miles away (only kidding, I didn’t really call the good people of Marcal).
And so like Britain having declared that she has the right to bind us in all cases* so has the coronavirus. Paine would write it was his secret opinion “that God Almighty will not give up a people to military destruction, or leave them unsupportedly (sic). I thank God that I fear not. I know our situation well, and can see the way out of it.”*
+ This writer had the honor and privilege of working for Mr. Ambrosio as an associate attorney of his law firm at the time.
*Excerpts from “THE CRISIS” by Thomas Paine, December 23, 1776.
The writer has a law practice in Hasbrouck Heights. He is admitted to practice law in the State of New Jersey, the District of Columbia, the US Federal District Court and the US Army Court of Criminal Appeals. He is a retired Major in the US Army, Judge Advocate General Corps.