60 THE QUEENS COURIER • HEALTH • OCTOBER 5, 2017 FOR BREAKING NEWS VISIT WWW.QNS.COM
health
The Elder Law Minute TM
The Right to Die is Not Protected by New York’s State Constitution
BY RONALD A. FATOULLAH, ESQ.
AND JEFFREY P. GORAK, ESQ.
ELDER LAW
THE TRIUMPH OF LOVE AND AGING
Despite the obstacles, love can triumph
for the old as well as for the
young. Th e importance of a sustained
love relationship in old age is hard
to overestimate. Sex brings more than
direct physical gratifi cation, although
this by itself is not to be slighted. It also
reaffi rms each partner’s identity as a
person who can off er something worthwhile,
and who can be someone worthwhile
to another person. Th e body is
still a means of giving and receiving
pleasure.
But there is another important function
of sexual intimacy in old age. Th e
old person is all too oft en ‘typecast’ to
the outside world. He is the secondary
character, belonging on the fringe of the
real action.
We tend to remain at an emotional
distance from him. Every day we walk
past, almost through old people on the
street, without clearly registering their
existence as individuals.
How and where is the old person to
fi nd reassurance that he is truly an individual?
Th at his distinctive personality
has not been forgotten? Th at he means
something to somebody? Surely, he cannot
entirely rely on the sad image of himself
that is refl ected back to him by society.
Th e intimacy of two people who
shared years, joys and sorrows together,
is an excellent buff er against a world
that looks at old men and women but
does not really see them.
In each other’s arms, they continue
to be themselves rather than society’s
impoverished image of the aged. Th e
small intimacies, the quiet conversations,
the sense of togetherness remain
both precious and life-affi rming.
In years to come old lovers may have
more of a chance than they do today.
Society may come to recognize that
oppressive attitudes toward sexual intimacy
in old age merely refl ect its own
insecurities and misconceptions.
If we expect to remain sexually alive
beyond early adulthood, then we are
likely to do so. And if we can overcome
unexamined prejudices against those
suspected of being old lovers today, then
we are more likely to raise a new generation
who will understand our own intimate
relationships when we are old.
Dr. Sheldon Ornstein is a
registered professional nurse
with a doctoral degree in
nursing organization. He
has specialized in the care
of older adults and has
published many articles on
the subject. He has done
post-graduate work in gerontology
and has taught
at several universities. In
2013, he was inducted into
the Nursing Hall of Fame at
Teachers College, Columbia
University.
Th e constitutionality of New York’s
statute criminalizing physician-assisted
suicide has, once again, been
tested. In a recent case, Myers v.
Schneiderman, three individual plaintiff
s (mentally competent terminally
ill patients, individual medical providers,
and an organization called End of
Life Choices) brought suit to establish
a right to physician-assisted suicide
under the Constitution of the State of
New York. In other words, the plaintiff
s argued that individuals have a
fundamental right to self-determination
and to control the course of their
treatment, which by extension includes
an individual’s right to choose aid-indying.
The New York Court of Appeals
unanimously disagreed with the plaintiffs.
The Court reached its decision
by examining the history of New York
State’s case law in the area of physician
assisted suicide. For instance, in
one case, a surgeon who performed
surgery on a patient who had not
given consent was deemed to have
committed an assault because, according
to the Court, every adult of sound
mind has a right to bodily integrity. In
another case, the Court concluded that
an involuntarily committed mentally
ill individual had a right to refuse antipsychotic
medication—even though it
may have been necessary to preserve
the patient’s life. The reason that a
person can refuse life-sustaining treatment
is that individuals have a fundamental
right to bodily integrity and
unwanted bodily invasions. However,
the Court drew a clear distinction
between the refusal of life-sustaining
treatment (which, as the case laws
holds, is protected under our State
Constitution) and physician-assisted
suicide. Physician-assisted suicide, or
aid-in-dying, involves the active prescription
of drugs for the purpose of
causing death. Since physician-assisted
suicide is not a fundamental right,
the only mechanism to declare New
York’s statutes criminalizing physician
assisted suicide unconstitutional
is to show that such conduct is not
rationally related to a legitimate state
interest.
Th e Court reviewed the State’s interest
in criminalizing physician-assisted
suicide, namely preventing the distribution
of prescriptions in lethal
amounts that could be intentionally or
accidentally misused, preserving life,
and preventing suicide, and concluded
that these interests were in fact rationally
related to a legitimate state interest.
Accordingly, the Court held that
the statute is constitutional, and that
it would be up to the New York State
legislature to legalize the prescription
of life-ending medications.
Individuals have a constitutional
right to make medical treatment decisions,
which, while it does not include
the right to assisted suicide, does
include the right to forego life-sustaining
treatments. However, a problem
oft en arises whereby individuals fail to
execute health care proxies and living
wills appointing someone to make
health care decisions on their behalf in
the event of incapacity and where specific
instructions are not given. When this
occurs, an individual’s desires regarding
treatment or non-treatment in the
event of a terminal illness may not be
known or followed. It is therefore critical
that an individual execute a health
care proxy and living will as part of his
or her estate plan.
Ronald A. Fatoullah, Esq. is the principal
of Ronald Fatoullah & Associates,
a law fi rm that concentrates in elder
law, estate planning, Medicaid planning,
guardianships, estate administration,
trusts, wills, and real estate. Jeff rey
P. Gorak, Esq. is an elder law attorney
with the fi rm. Th e law fi rm can be
reached at 718-621-5300, or toll free at
1-877-ESTATES. Mr. Fatoullah is also
a partner with Advice Period, a wealth
management fi rm, and he can be reached
at 424-256-7273.
RONALD FATOULLAH
ESQ, CELA*
“Be yourself, everyone
else is taken.”
Author: Anon.