1 See NANCY KING, MAKING SENSE OF ADVANCE DIRECTIVES 42 (rev. ed.1996); Lynn, Joanne & Goldstein, Nathan, Advance Care Planning for Fatal Chronic Illness: Avoiding Commonplace Errors and Unwanted Suffering, 138 ANNALS INT. MED. 812, 817 (2003)CrossRefGoogle ScholarPubMed. See also Cruzan v. Director, Missouri Dep't of Public Health, 497 U.S. 261 (1990).

2 Editorial, After Terri Schiavo, WASH. POST, Apr. 1, 2005, at A26 [hereinafter Editorial].

3 Id.

4 A 1994 study estimated that there were between 10,000 and 25,000 adults and between 4,000 and 10,000 children in a persistent vegetative state without living wills. See The Multi-Society Task Force on PVS, Medical Aspects of the Persistent Vegetative State, 330 NEW.ENG. J.MED. 1499 (1994).

5 See Editorial, supra note 2 (quoting study predicting that the number of Americans aged 85 and over will grow from 4.2 million in 2000 to nearly 9 million in 2030).

6 L. C. Hanson & Rodgman, E., The Use Of Living Wills at the End of Life. A National Study, 156 ARCH. INT. MED. 9 (1996)Google Scholar.

7 Patrick Webster, Enforcement Problems Arising From Conflicting Views of Living Wills in the Legal, Medical and Patient Communities, 62 U. PITT. L. REV. 793, 806 (Summer 2001).

8 Angela Fagerlin & Carl E. Schneider, Enough: The Failure of the Living Will, 34(2) HASTINGS CENTER REPORT 30, 36 (March-April 2004).

9 N.D. CENT. CODE § 23-06.5-05 (2005).

10 See discussion infra Part III.

11 See, e.g., Gelfand, Gregory, Living Will Statutes: The First Decade, 1987 WIS. L. REV. 737, 755–65 (1987)Google Scholar; Goldman, Craig P., Comment, Revising Iowa's Life-Sustaining Procedures Act: Creating a Practical Guide to Living Wills in Iowa, 76 IOWA L. REV. 1137, 1156 (1991)Google ScholarPubMed; Lobe, Shari, The Will to Die: Survey of State Living Will Legislation and Case Law, 9 PROB. L.J. 47, 56 (1989)Google Scholar.

12 See discussion infra Part IV.

13 See Bernard Lo & Robert Steinbrook, Resuscitating Advance Directives, 164 ARCH. INT. MED. 1501 (2004); see generally Emanuel, Linda, Living Wills Can Help Doctors and Patients Talk About Dying, 173(6) WEST J. MED. 368 (2000)CrossRefGoogle ScholarPubMed (arguing that this is one of the primary benefits of advance directives).

14 Randy Dotinga, A Living Will May Require More Steps to be Valid, CHRISTIAN SCI. MONITOR, Sep. 29, 2004, at 14.

15 See discussion infra Part V.D.

16 497 U.S. 261 (1990).

17 Id. at 281.

18 Id.

19 Id.

20 Id. at 270 (quoting In re Quinlan, 355 A.2d 647, 664 (1976)).

21 Cruzan, 497 U.S. at 280.

22 See generally Horttor, Bretton J., A Survey of Living Will and Advanced Health Care Directives, 74 N. D. L. REV. 233 (1998)Google ScholarPubMed.

23 42 U.S.C. § 1395cc(f) (1990).

24 Id.

25 See generally BARRY FURROW ET AL., HEALTH LAW: CASES, MATERIALS AND PROBLEMS 1396-97 (5th ed., Thomson West 2004) (1987).

26 See Wright v. Johns Hopkins Health Sys. Corp., 728 A.2d 166, 169-70 (Md. 1999) (discussing Maryland law) (internal citations and footnotes omitted). [W]here the declarant has an advance directive but has not appointed a health care agent, a health care provider cannot withhold or withdraw life-sustaining procedures on the basis of the advance directive unless two physicians certify that the declarant is in one of three diagnostic conditions: a terminal condition, an end-stage condition, or a persistent vegetative state. If the condition is a terminal condition or an end-stage condition, the declarant's attending physician and a second physician must certify that the declarant is in a terminal or end-stage condition. If the condition is a persistent vegetative state, two physicians, one of whom is a neurologist, neurosurgeon, or other physician who has special expertise in the evaluation of cognitive functioning, must certify that the declarant is in a persistent vegetative state. Id.

27 See generally FURROW ET AL., supra note 25, at 1397-98.

28 Fagerlin & Schneider, supra note 8, at 36.

29 E.g., N.H. REV. STAT. ANN. §§ 137-J:1-16 (2004) (durable power of attorney for health care), and N.H. REV. STAT. ANN. §137-H:1-16 (2004) (living will).

30 E.g., MISS. CODE ANN. § 41-41-205 (2004).

31 See, e.g., CAL. PROB. CODE §§ 4600-4948 (West 2004); FLA. STAT. ANN. §§ 765.01- 765.404 (West 2004); MD. CODE ANN., HEALTH-GEN. §§ 5-601 to 5-608 (West 2004).

32 E.g., MASS. GEN. LAWS ANN. ch. 201D (West 2004).

33 See, e.g., MD. CODE ANN., HEALTH-GEN. § 5-602(d) (West 2004); see also Lo & Steinbrook, supra note 13.

34 See Lo & Steinbrook, supra note 13.

35 See Phipps, Etienne et al., Approaching the End of Life: Attitudes, Preferences, and Behaviors of African-American and White Patients and Their Family Caregivers, 21 J. CLINICAL ONCOLOGY 549, 551 (2003)CrossRefGoogle ScholarPubMed (24% of the patients surveyed had a living will).

36 Kevin Sweeney, Companies Extend Good Will to Employees, EMP.BENEFIT NEWS, Oct. 1, 2002, available at http://www.agingwithdignity.org/ebenefit.html.

37 See Dotinga, supra note 14..

38 Hanson & Rodgman, supra note 6 (21.6% among those with at least fours of college compared with 9.8% average).

39 Id.

40 Langbein, John, Substantial Compliance with the Wills Act, 88 HARV. L. REV. 489, 490 (1975)CrossRefGoogle Scholar; see Statute of Frauds, 29 Car. 2, c. 2, §5 (1677) (Eng.).

41 29 Car. 2., c. 3, § 5 (1677) (Eng.).

42 Statute of Victoria, 7 Wm. IV & 1 Vict., c. 26 (1837) (Eng.).

43 Lindgren, James, Abolishing the Attestation Requirement for Wills, 68 N.C.L.REV. 541, 548 (1990)Google Scholar.

44 Id.

45 Id.

46 Id. at 549.

47 Id. at 549.

48 Id. at 548.

49 Langbein, supra note 40, at 490-491.

50 See generally Gulliver & Tilson, Classification of Gratuitous Transfers, 51 YALE L.J. 1 (1941).CrossRefGoogle Scholar

51 Lindgren, supra note 43, at 543. A 1960 treatise lists cites to 2,000 such cases. Id. at n.15 (citation omitted).

52 See Gulliver & Tilson, supra note 50, at 5-13.

53 Id. at 6.

54 Langbein, supra note 40, at 492-93.

55 Id. at 493.

56 Id. at 495.

57 See Gulliver & Tilson, supra note 50, at 10.

58 Id. at 11.

59 Id. at 11-12.

60 JESSE DUKEMINIER ET AL., WILLS, TRUSTS, AND ESTATES 344-45 (7th ed., Aspen Publishers 2005).

61 Id. at 341-42.

62 Id. at 333-36.

63 Id. at 322-24.

64 Id. at 236

65 See Gulliver & Tilson, supra note 50, at 13-14.

66 See DUKEMINIER ET AL., supra note 60, at 202-4.

67 See Gulliver & Tilson, supra note 50, at 11-12. See also DUKEMINIER ET AL., supra note 60, at 215.

68 See Gulliver & Tilson, supra note 50,. at 11-12.

69 Id.

70 See Uniform Probate Code § 2-505(b) (2005).

71 Id.

72 Id. at comment.

73 Langbein, supra note 40, at 489.

74 See id.

75 Id. at 526-27.

76 Uniform Probate Code § 2-503 (2005).

77 Id. at comment.

78 One commentator insists that the health care provider can forgive mistakes in the execution of an advance directive. See KING, supra note 1, at 117 (“[T]he caregiver must decide whether such nonconforming directives contain enough other indicia of reliability.”) (emphasis added). In fact, when a conflict arises as to whether to implement an advance directive, the decision whether the advance directive is valid will often be made by a court. While a doctor may acknowledge that the directive accurately states the patient's wishes, a family member who opposes the withholding or withdrawal of care can seek an injunction based on the technical deficiency of the will. See infra Part V.D.

79 Uniform Probate Code § 2-505 at comment (2005).

80 For examples of the various approaches to testation utilized in different U.S. jurisdictions, see Lindgren, supra note 43.

81 Gulliver & Tilson, supra note 50, at 9-10.

82 Maryland law defines a terminal condition as “an incurable condition caused by injury, disease, or illness which, to a reasonable degree of medical certainty, makes death imminent and from which, despite the application of life-sustaining procedures, there can be no recovery.” Wright, 728 A.2d at n. 3 (1999).

83 Maryland law defines a persistent vegetative state as [A] condition caused by injury, disease, or illness: (1) In which a patient has suffered a loss of consciousness, exhibiting no behavioral evidence of self-awareness or awareness of surroundings in a learned manner other than reflex activity of muscles and nerves for low level conditioned response; and (2) From which, after the passage of a medically appropriate period of time, it can be determined, to a reasonable degree of medical certainty, that there can be no recovery.” Id. at n. 5.

84 Id.at 169.

85 See, e.g., LA. REV. STAT. ANN. § 40:1299.58.2(12) (2004).

86 Fagerlin & Schneider, supra note 8, at 36.

87 Id. (quoting Joanne Lynn, Learning to Care for People with Chronic Illness Facing the End of Life, 284 JAMA 2508 (2000)).

88 Wright, 728 A.2d at 172.

89 See, e.g., N.D. CENT. CODE § 23-06.5-01 (2005) (“This chapter does not condone, authorize, or approve mercy killing, or permit an affirmative or deliberate act or omission to end life, other than to allow the natural process of dying.”).

90 See, e.g., KY. REV. STAT. ANN. §§ 311.625(1)-(4) (West 2004); MICH. COMP. LAWS ANN. §§ 700.5506 (1)-(5) (West 2004).

91 See, e.g., ARIZ. REV. STAT. ANN. § 36-3221 (2004).

92 S.C. CODE ANN. § 62-5-505 (2004).

93 Id.

94 Unif. Health-Care Decisions Act of 1993 § 2(b), 9 Pt. I U.L.A. 315 (Supp. 1990).

95 Id. at comment.

96 See also, Lo & Steinbrook, supra note 13, at n. 44.

97 See also Hoffmann, Diane E., Symposium, The Maryland Health Care Decisions Act: Achieving the Right Balance?, 53 MD. L. REV. 1064, 1117–1118 (1994)Google Scholar; Lo & Steinbrook, supra note 13, at n. 43.

98 The Hippocratic Oath states, in part: I will follow that system of regimen which, according to my ability and judgment, I consider for the benefit of my patients, and abstain from whatever is deleterious and mischievous… . While I continue to keep this Oath unviolated, may it be granted to me to enjoy life and the practice of the art, respected by all men, in all times. But should I trespass and violate this Oath, may the reverse be my lot. Ben Green, Medical Ethics for Student Doctors, http://www.priory.com/ethics.htm#Hippocratic (last visited Mar. 21, 2006).

99 Cf. Sandeep Jauhar, Give Up? No Way. On a Matter of Life or Death, a Patient is Overruled, N.Y. TIMES, Oct. 5, 2004 at F5 (describing how one doctor insisted on continuing care over the objection of the patient).

100 Webster, supra note 7, at 798.

101 John La Puma, Advance Directives in Managed Care: Are They Inspired by Love or Money?, MANAGED CARE, Oct. 1996, available at http://www.managedcaremag.com/archives/9610/MC9610.ethics.shtml (stating that “[c]linical assessments of proxy intent and reliability seldom reveal distorted judgment stemming from financial conflicts of interest.”).

102 See infra notes 103-106 and accompanying text.

103 ALA. CODE § 22-8A-4 (2005); ARIZ. REV. STAT. ANN. § 36-3221 (2004); DEL. CODE ANN. tit. 16, § 2503 (2005); KAN.STAT.ANN. § 58-629 (2004); KY. REV. STAT. § 311.621 (Baldwin 2004); L.A. REV. STAT. § 40.1299.58.2 (2004); MICH. COMP. LAWS ANN. § 700.5506(4)(2005); NEB. REV. STAT. §§ 30-3405 (2004); N.H. REV. STAT. ANN. § 137-J:5 (2004) (excluding heirs and spouses); N.C. GEN. STAT. § 32A-16,(2005); N.D. CENT. CODE § 23-06.5-05 (2005); OHIO REV. CODE ANN. § 2133.02 (LexisNexis 2006); S.C. CODE §§ 62-5-504 (2004); W. VA. CODE ANN. § 16-30-4 (West 2004); WIS. STAT. ANN. § 154.03 (West 2005).

104 ALASKA STAT. § 13.52.010 (LexisNexis 2006); D.C. CODE ANN. § 7-622 (2005); HAW. REV. STAT. § 327E-3 (2004); IOWA CODE ANN. § 144A.3 (West 2005); MISS. CODE ANN. § 41-41-205 (West 2004); NEV. REV. STAT. 449.840 (2005); OR. REV. STAT. § 127.515 (2004); R.I. GEN. LAWS §§ 23-4.10-2 (2004); TENN. CODE. ANN. § 34-6-203 (West 2006); TEX. CODE ANN. § 166.003 (2005).

105 COLO. REV. STAT. §§ 15-18-105, 106 (2005); FLA. STAT. § 765.302 (2005); VT. STAT. ANN. tit. 18, § 9703 (2005).

106 Goldman, Craig P., Note, Revising Iowa's Life-Sustaining Procedures Act: Creating a Practical Guide to Living Wills in Iowa, 76 IOWA L. REV. 1137, 1156–57 (1991)Google ScholarPubMed.

107 See Uniform Probate Code § 2-205 at comment.

108 It might be argued that the nephews have done nothing that Congress, in the form of the PSDA, the American Bar Association, doctors, law professors, and charities routinely do—persuade skeptical people of the need to execute a living will.

109 At this point, if the doctors and the relatives agree that care is futile, then medical care may be withdrawn without the need to invoke a living will.

110 See James Lindgren, Abolishing the Attestation Requirement for Wills, 68 N.C.L.REV. 541, 555 (1990)

111 Unif. Health Care Decisions Act § 9 (1993).

112 MISS. CODE ANN. § 41-41-221 (2) (2004).

113 See Note, The Will to Die: Survey of State Living Will Legislation and Case Law, 9 PROB. L. J. 47, 56 (1989) [hereinafter Will to Die].Google Scholar

114 40 TENN. BAR JOURNAL 25, 28.

115 ALASKA STAT. § 13.52.010 (2006); ARIZ. REV. STAT. ANN. § 36-3221 (2004); CAL. PROBATE CODE § 4674 (West 2005); D.C. CODE ANN. § 7-622 (LexisNexis 2005); DEL. CODE ANN. tit. 16, § 2503 (2005); HAWAII REV. STAT. § 327E-3 (2004); IOWA CODE ANN. § 144A.3 (West 2005); KY. REV. STAT. § 311.625 (West 2005); MICH. COMP. LAWS ANN. § 700.5506(4) (West 2005); MINN. STAT. ANN. § 145C.03 (West 2005); MISS. CODE ANN. § 41-41-205 (West 2005); NEB. REV. STAT. §§ 30-3405, 20-404 (2005); NEV. REV. STAT. 449.840 (2005); N.H. REV. STAT. ANN. § 137-J:5 (2005); N.C. GEN. STAT. §§ 32A-25, 90-321 (2005); N.D. CENT. CODE § 23-06.5-05 (2005); OHIO REV. CODE ANN. §§ 1337.12, 2133.02 (West 2006); OR. REV. STAT. § 127.515 (2003); R.I. GEN. LAWS § 23-4.10-2 (2006); S.C. CODE ANN. § 44-77-40 (2005); TEX. HEALTH & SAFETY CODE ANN. § 166.003 (Vernon 2004); W. VA. CODE ANN. § 16-30-4 (LexisNexis 2005); WIS. STAT. ANN. § 154.03 (West 2005); WYO. STAT. ANN. § 35-22-403 (2006); See AMERICAN BAR ASSOCIATION, HEALTH CARE POWER OF ATTORNEY AND COMBINED ADVANCE DIRECTIVE LEGISLATION (Sept. 1, 2004), http://www.abanet.org/aging/HCPA-CHT04.doc.

116 See, e.g., N.C. GEN. STAT. §§ 32A-25, 90-321 (2005).

117 See, e.g., MICH. COMP. LAWS ANN. § 700.5506(4) (West 2005).

118 See, e.g., NEV. REV. STAT. 449.840 (2005).

119 See, e.g., CAL. PROBATE CODE § 4674 (West 2005) (neither witness may be a health care provider); N.H. REV. STAT. ANN. § 137-J:5 (2005) (one of the witnesses must not be health care provider).

120 See, e.g., OHIO REV. CODE ANN. §§ 1337.12, 2133.02 (West 2006).

121 See, e.g., W. VA. CODE ANN. § 16-30-4 (LexisNexis 2005).

122 See, e.g., MONT. CODE ANN. § 50-9-103 (2005) (health care providers not disqualified from witnessing advance directives).

123 See Will to Die, supra note 113, at 56.

124 See Jauhar, supra note 99.

125 See, e.g., Suzanne J. Deal, A Matter of Life and Death in Pennsylvania: Are Doctors Ignoring the Living Wills of Their Patients?, 67 PENN. BAR ASS’N. Q. 139 (Oct. 1996). 126 In re Estate of Parsons, 103 Cal. App. 3d 384, 388 (Cal. Ct. App. 1980).

127 See 42 U.S.C. § 1395cc(f) (1990).

128 CALIFORNIA LAW REVIEW COMMISSION, MEMORANDUM 97-4: HEALTH CARE DECISIONS: UNIFORM HEALTH CARE DECISIONS ACT 2 (Mar. 27, 1997), www.clrc.ca.gov/pub/Study-L-Probate- Trusts/ L4000-HealthCareDecisions/M97-41-HealthCareMemo.pdf.

129 Id. at 14.

130 Id.

131 See 42 U.S.C. § 1395cc(f) (1990).

132 Hahn, Michael, Advance Directives and Patient-Physician Communication, 280 MED.STUDENT JAMA 96 (2003)Google Scholar (study of HMO members found that one-third of patients 65 or over had filed an advance directive; La Puma, supra note 101 (stating that 25% or fewer of all patients have an advance directive); Practice, Vox Populi: Online Quick Poll, http://www.aacn.org/AACN/aacnnews.nsf/GetArticle/ArticleTwo1711?OpenDocument#poll (last visited Mar. 21, 2006) (30% of those survey reported having a living will or DPAHC).

133 Upadya, Anupama et al., Patient, Physician, and Family Member Understanding of Living Wills, 166 AM. J. RESPIRATORY & CRITICAL CARE MED. 1430, 1430 (2002)CrossRefGoogle ScholarPubMed (finding that only 206 of 4,800 patients admitted during the study period, or 4.3%, reported having a living will).

134 Many people fail to execute advance directives for reasons that have nothing to do with the administrative burdens associated with the documents’ execution. Factors such as race and ethnicity can play a subtle but determinative role. For example, it is well-documented that ethnic minorities in the United States are much less likely to have completed an advance directive than Caucasians. Etienne Phipps et al., Approaching the End of Life: Attitudes, Preferences, and Behaviors of African- American and White Patients and Their Family Caregivers, 21 JOURNAL OF CLINICAL ONCOLOGY 549, 549 (2003). While this disparity could be attributed to a disparity in health care access, there is evidence that minorities are more likely to actively reject the withholding of care. For example, in a study of 68 patients with lung or colon cancer, African American patients were less likely to have advance directives, and more likely to request the use of specific life-sustaining measures, than their white counterparts. Id. As an explanation for such results, it has been suggested that African Americans, Hispanics, and Asians are less interested than Caucasians in advance directives because they were denied access to health care in the past. See La Puma, supra note 101. Specific cultural norms can also inform the decision not to execute advance directives. A study of Navajo Indians revealed that the Navajo concept of hozho, which encourages thinking and speaking in a positive way, was at odds with the concept of end of life planning. Joseph A. Carrese & Lorna A. Rhodes, Western Bioethics on the Navajo Reservation: Benefit or Harm?, 274 JAMA 826 (1995). Eighty-six percent of those interviewed considered advance care planning a dangerous violation of their traditional values. Id. In another study, Asian Indian Hindus with a strong religious affiliation and a family decision-making style were found to be much less likely to have an advance directive than those with a more individualistic decision-making style. Doorenbos, Ardith Z. & Nies, Mary A., The Use of Advance Directives in a Population of Asian Indian Hindus, 14 J. TRANSCULTURAL NURSING 17 (2003)CrossRefGoogle Scholar. Commentators who lament the low rate of advance directive completion may not have reckoned with the wide variety of social and ethnic factors which may inform the decision whether to perform end-of-life planning. Finally, there are those who find that their religious or moral beliefs are inconsistent with the concept of withdrawing or withholding care. The public debate over the fate of Terri Schiavo put this viewpoint in sharp relief. While some individuals with this belief will choose not to execute an advance directive, others will execute a living will that specifically provides that care should not be withdrawn. Joan Schwartz & James Estrin, Through Living Wills, Many Seeking One Final Say on End of Life, N.Y.TIMES, June 17, 2005, at A1. One individual who chose the latter option explained her choice: “There is value in suffering … In the Catholic perspective, we can offer up our sufferings to Christ. And it will be a benefit to us, our souls, in the next life.” Id. The motive of selfpreservation may also be a powerful factor. One informant, whose living will requested that all heroic measures be taken, explained: “We’re a very disposable society, and I don't want to be considered disposable.” Id. Because of the general understanding of living wills as instruments of withholding futile care, it can be presumed that many who do not execute advance directives at all share such views.

135 Michael Higgins, Living-Will Advocates Praise Illinois, CHI. TRIB., Dec. 18, 2003, at C13.

136 Mark P. Pfeifer et al., The Value of Disease Severity in Predicting Patient Readiness to Address End-of-Life Issues, 163 ARCH. INT.MED. 609 (2003) (study finding that patients did not become more interested in end-of-life discussion at later stages of chronic lung disease).

137 Webster, supra note 7, at 807.

138 Rita Charon, Advance Directives, http://www.columbia.edu/∼am430/directives.htm (last visited Mar. 21, 2006). Exasperation with colleagues who fail to discuss end-of-life planning with their patients has led one physician to make the following pronouncement: “You should make it a personal goal that people with serious chronic illness do not leave you care without an advance care plan. I have proposed, at least half-seriously, that the second time a patient with severe emphysema is admitted to the same hospital and has no advance care plan, the hospital should get only half of the DRG [diagnosis-related group] payment. That would make reform happen quickly.” Lynn, Joanne & Goldstein, Nathan E., Advance Care Planning for Fatal Chronic Illness: Avoiding Commonplace Errors and Unwanted Suffering, 138 ANNALS INTERNAL MED. 812 (2003)CrossRefGoogle ScholarPubMed.

139 See Lo & Steinbrook, supra note 13.

140 Id.

141 Charles Key & Gary Miller, The Tennessee Health Care Decisions Act: A Major Advance in the Law of Critical Care Decision Making, 40 TENN. B.J. 25, 27 (Aug. 2004) (reporting hospital staff complaints that patients resist forms that are offered in the facility because of their complexity).

142 E.g., John Schwartz & James Estrin, Many Seeking One Final Say on End of Life, N.Y. TIMES, June 17, 2005, at A1; Jeanne Phillips (Dear Abby), Get a Living Will - Now, KAN. CITY STAR, Aug. 3, 2004, at D6.

143 Key & Miller, supra note 141, at 27.

144 See Hoffmann, supra note 97.

145 Id at 1088, n. 96.

146 Id. at 1090, n. 102.

147 Id. at 1087-88.

148 Id. at 1088, n. 96.

149 See Lo & Steinbrook, supra note 13.

150 See Upadya et al., supra note 133.

151 See Brett, A.S., Limitations of Listing Specific Medical Interventions in Advance Directives, 266 JAMA 825, 825–828 (1991)CrossRefGoogle ScholarPubMed.

152 See Upadya et al., supra note 133.

153 Lindgren, supra note 43, at 548.

154 See, e.g., OKLA. STAT. ANN. tit. 63, § 3101.1 to .16 (West 2004).

155 See, e.g., VA. CODE ANN. § 54.1-2981 to -2993 (West 2004).

156 Hoffman, supra note 97, at 1109.

157 Key & Miller, supra note 141, at 27.

158 See Fagerlin & Schneider, supra note 8, at 35 (estimating that half of all advance directives are drafted by lawyers).

159 See Deal, supra note 125.

160 Webster, supra note 7, at 806.

161 Pfeifer et al., supra note 136.

162 See Lo & Steinbrook, supra note 13.

163 Id.

164 See KING, supra note 1, at 117 (stating that “thoughtfully composed nonconforming directives[ ] would certainly meet such a standard.”).

165 Id. at 114 (emphasis added).

166 See, e.g., Colorado Bar Ass’n, Advance Medical Directives – For the Public, http://www.cobar.org/group/display.cfm?GenID=411 (last visited Mar. 21, 2006) (explaining that a lawyer may challenge the validity of an advance directive in court). 167 Pettis v. Smith et al., 39-295 (La. App. 2 Cir. 8/13/04); 880 So. 2d 145, 147. 168 LA. REV. STAT. § 40:1299.58.3(A) (2005). 169 Id. at. § 40:1299.58.2(16).

170 Pettis, 880 So. 2d. at 146. This fact pattern, in which a child from out of town arrives and tries to thwart the withdrawal of care, while children who live nearby say that this is what the parent wanted, is a “stereotypical conflict.” Laura Meckler, Living Wills Don't Really Work Often, AP, Nov. 11, 2005, available at http://www.boston.com/news/nation/articles/2004/11/25/living_wills_dont_really_work_often/.

171 Pettis, 880 So. 2d. at 146.

172 Id. at 151-52.

173 Id. at 150.

174 Id. at 151.

175 Id. at 150.

176 Id. at 151.

177 Id. at 152.

178 Bruce Nolan, Woman's Living Will is Valid, Court Rules: Feeding Tube Can Be Removed From Patient, NEW ORLEANS TIMES-PICAYUNE, Aug. 14, 2004, at 1.

179 Langbein, supra note 40, at 531.