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The Electronic Living Will and Formalities of Execution

by Jon Michael Dumont
Third year student
Villanova University, School of Law
Computer Science and Legal Reasoning Seminar
Professor Henry H. Perritt, Jr.
May 1993


I. Introduction

     In reaction to escalating health care costs, proposals have been
made to computerize health care records.1  However, the
computerization of certain medical records may conflict with
statutorily mandated writing and signature requirements imposed by
current state law.  Living wills2 present a useful example for
examining the transition from paper to electronic medical records.  
Living wills have writing, signature and attestation requirements for
legal validity,3 and living wills are required to be incorporated into
the declarants' medical records.4
     This paper first explores the current law of living wills, and
then suggests one possible method of implementing electronic living
wills.  The paper then examines the objectives underlying the
formalities of execution associated with living wills, and analyzes
how well those objectives are achieved in the proposed electronic
format as compared to the traditional paper format.  Finally, the
paper concludes that the potential advantages of electronic living
wills over their paper counterparts justify legislative facilitation
of the use of electronic living wills in the future.  Although this
paper focuses specifically on electronic living wills, the analysis
may be adapted to other documents which also have writing and
signature requirements for legal validity.


II. Living Wills

     In Cruzan v. Director, Missouri Department of Health,5 the
Supreme Court considered for the first time whether there exists a 
constitutional "right to die."6  A plurality of the Court upheld a
Missouri statute requiring that a patient's desire to refuse
artificial nutrition and hydration be established by clear and
convincing evidence before such sustenance could be withheld.7  The
Cruzan decision has been interpreted by some commentators as the
Supreme Court's indirect endorsement of the use of living wills to
establish a patient's desire to refuse life-sustaining  hydration and
nutrition by clear and convincing evidence.8  However, the Supreme
Court in Cruzan never defined what would constitute clear and
convincing evidence of an individual's desire to refuse
life-sustaining treatment.  Instead, the Court decided to leave the
details of determining and enforcing patients' wishes to the states.9 
As a result, over forty different living will statutes10 have been
enacted by states which dictate the con
ditions in the respective jurisdictions under which a living will
becomes legally effective.11    
     While a comprehensive examination of the various living will
statutes is beyond the scope of this paper, there are a number of
characteristics common to most state statutes.  Under the typical
statute, a competent adult12 may execute a living will in which the
declarant states that should the declarant later become incompetent
and terminally ill13 or enter a persistent vegetative state,14
sustained only by artificial life-prolonging procedures,15 that
declarant chooses not to receive further medical treatment.  Some
statutes also provide for living wills in which the declarant requests
the continuation of life prolonging medical treatment.16  
     To execute a legally binding living will, a declarant usually
must comply with a number of statutory formalities.  Most living will
statutes require the declaration to be in writing and signed by the
declarant17 in the presence of at least two witnesses.18  Witnesses
generally verify that the declarant was of sound mind at the time of
execution.  Living will statutes often have strict witness
qualification restrictions19 designed "to avoid conflicts of
interest."20  Furthermore, a number of living will statutes provide a
living will form, but these statutes differ as to whether use of the
form is mandatory or optional.21  In addition, living will statutes
often require the declarant to deliver the declaration to his or her
health care provider.22  Mississippi requires living wills to be filed
with the bureau of vital statistics of the state board of health.23 
In order to ensure compliance with state formalities, North Carolina
has a statutory provision for "proving" living wills before a clerk of
the s
uperior court or a notary public.24  However, this type of
non-judicial authentication seems ill-suited to preventing individuals
intent on falsifying a living will.25  Anyone who conceals or damages
a living will, forges a living will, forces another to execute a
living will or conceals knowledge of a revocation is usually subject
to criminal penalties under state law.26  A judge is in a better
position to enforce these laws than a notary public.  Nevertheless,
these formalities all tend "[t]o provide a more reliable record of the
decision to execute a living will and . . . provide a `ceremony` which
will reinforce the seriousness of the matter at hand."27  
     Revocation of a living will requires minimal formality under the
majority of living will statutes.28  The apparent reason for this lack
of formality for revocation is to ensure that no patient wanting
treatment will be denied such treatment, notwithstanding previous
execution of a living will.  However, this lack of formality also
seems to increase the probability of the reporting of unintended
revocations and mistakes in the identification of revocations.29  One
commentator has suggested:

[t]he reasons for requiring a degree of formality in the execution of
living wills are no less applicable to revocation. Physicians faced
with reports of oral statements that may or may not be revocations
cannot say for certain whether the statements were actually made,
whether the words used were a sufficiently clear expression of an
intent to revoke, or whether clearly stated words were intended as the
patient's final expression. Patients may make statements of revocation
without ever realizing that someone might act upon such casual words.
Without some degree of formality, there is no way to separate
preliminary thoughts and tentative plans from legally effective and
significant acts. To avoid such ambiguities when a patient is choosing
between life and death, living will statutes should require the same
formalities for revocation as for execution.30
Nevertheless, only Mississippi requires a highly formal revocation
procedure.31  
     Health care providers may incur a duty to incorporate a
declarant's living will into his or her medical records under either a
state living will statute32 or The Patient Self-Determination Act of
1990 (PSDA).33  Under the PSDA,
    
any organization receiving Medicare or Medicaid funding must provide
the advance directive descriptions to adult individuals admitted as
patients, residents, or those receiving hospice care.  [T]hese health
care providers must formulate written policies to implement the
state's guidelines concerning advance directives and inform patients
about these policies.  Health care organizations must document in each
individual's medical record whether an advance directive has been
executed, and, if so, ensure that it complies with the state developed
description.34 
Under the PSDA, only health care providers that receive Medicare or
Medicaid funding incur duties to document living wills in patient
medical records.  However, state living will statutes impose
obligations on health care providers to document living wills in
patient medical records irrespective of Medicare or Medicaid funding. 

     In order for a living will to take effect, most states require
the attending physician to provide a written certification documenting
the declarant's terminal condition or persistent vegetative state for
the declarant's medical records.35  Typically, the declarant's
condition must be confirmed by more than one physician.36  The
apparent rationale behind this requirement is to prevent medical
error.37  However, these statues do not specify what happens if the
second doctor disagrees.  If the second doctor simply refuses to sign
the certification, and a third doctor can be found to concur, the
confirmation requirement may not necessarily serve to reduce medical
error.38  Nevertheless, the requirement that the certification be in
writing "serves to ensure that the second opinion will be given with
some care as it could easily be traced to its author."39
     Health care providers acting in good faith are protected from
liability when following a declarant's wishes as expressed in a living
will executed in accordance with state law.40  If a physician is
unwilling to abide by the declarant's wishes, state law usually
imposes an obligation on the physician to transfer the declarant to
another physician who will honor the living will.41  However, no
physician can be forced to participate in the withdrawal of
life-sustaining treatment.  In addition, at least one court has held
that when there is no reliable evidence of the patient's own desires
to recieve or refuse treatment, a physician or hospital does not act
at its peril by refusing to withdraw life support without court
permission.42  


III. Electronic Living Wills

     In June of 1992, federal legislation was proposed to create an
electronic network designed to reduce the costs associated with health
care.  This proposed legislation, referred to as The Medical and
Health Insurance Information Reform Act of 1992,43 has three major
components: (1) automation of claims processing and payment; (2)
automation of medical records; and (3) provision of comparative
information for consumers regarding the quality and cost of health
care.  In order to implement the automation of medical records, the
proposed legislation prohibits states from requiring medical
information to be kept in written, rather than electronic form.44  The
Secretary of Health and Human Services is given responsibility for
promulgating standards for the transmission and content of electronic
medical records.45  In addition, hospitals that participate in
Medicare would be required to maintain "an electronic patient care
information system that met the standards specified by the
Secretary."46  
     The rationale behind automating medical records seems to be
twofold.  Dr. Louis Sullivan suggested that the "[q]uality and
coordination of care for patients will be improved, as physicians and
hospitals . . . [get] rapid and easy access to a patient's medical
history through automation."47  The life-saving potential of automated
medical records in situations where quick access to critical
information48 can mean the difference between life and death is
evident.  However, not all the information in a patient's medical
records is critical information.  Furthermore, Representative Frank
Horton of New York, who introduced The Medical and Health Insurance
Information Reform Act in the House of Representatives, suggested, "an
electronic network . . . will greatly reduce the administrative costs
associated with health care."49  An electronic medical records system
has great potential to reduce the time spent searching for records,
save physical space used for storing paper records, and reduce the
cost associate
d with copying and transporting medical information.  These savings
would apply to all electronic records, including electronic living
wills.  
     A living will, which must be made a part of the declarant's
medical records in most jurisdictions,50 provides a useful example for
examining the transition from paper to electronic storage of records. 
Living wills have statutorily mandated writing and signature
requirements which may preclude the use of an electronic living will. 
Nevertheless, the use of electronic living wills may be justified in
terms of reductions in administrative costs, improved access and other
advantages over paper living wills.  In order to compare the use of
electronic living wills with paper living wills, it is first necessary
to examine how electronic living wills could fit into a larger,
comprehensive electronic medical records system.   
     Implementation of a comprehensive electronic medical records
system will require interfacing separate and independent health care
computer systems.  Health care providers will inevitably need access
to medical records collected and stored in distant computer systems. 
As long as a standardized addressing scheme and data structure is
adopted, medical records could easily be transferred between distant
computer systems over the Internet.51  Since different computer
systems may use different data structures, multiple protocol
conversions may be necessary to allow different computer systems to
communicate with each other.  By standardizing data structures within
the medical records system, the need for format conversions may be
eliminated and transmission error reduced.  The electronic medical
records system could incorporate the use of "hypertext" pointers52 to
link documents across the network.  Given the sensitive nature of
medical records, health care providers could design their computer
systems to uti
lize public key encryption techniques53 to ensure confidentiality and
authentication when communicating over the Internet.    
      Electronic living wills could be implemented over the Internet
with the aid of a third party value added network (VAN).  This trusted
VAN would facilitate the encryption of electronic living wills and
certify their authenticity.  The VAN could issue private keys to
individuals wishing to execute living wills.  The private key and
algorithm needed for encryption could be sent to the declarant by mail
or other secure means.  Using a PC,54 a declarant could execute an
electronic living will, encrypt it using the private key and algorithm
provided by the VAN, and send it to over the Internet to the VAN. 
Furthermore, the electronic format also offers a multimedia dimension.
 Individuals may videotape the execution of their living wills, have
the videotape digitized and then incorporated into their electronic
living wills prior to encryption and delivery to the VAN.55  The VAN
can verify the living will using the declarant's public key and then
place the encrypted living will and its corresponding public ke
y on a secured file server56 attached to the Internet.  The VAN could
certify that a living will decoded with a particular person's public
key was necessarily generated by that person's private key.  A
hypertext pointer could then be included in the declarant's electronic
medical records in the health care provider's computer indicating the
location of that declarant's living will and the appropriate public
key on the VAN's server.  When a health care provider accesses the
living will pointer in a patient's electronic medical records, the
encrypted living will along with the appropriate public key would be
retrieved from the VAN.  Upon decoding the living will, the health
care provider could be certain of the document's authenticity. 
Furthermore, the terminal condition or vegetative state certifications
required to activate a living will57 could be executed electronically
by doctors using public key encryption and connected to the
corresponding living will using hyptertext pointers.
     In order to elucidate how this vision of electronic living wills
will compare with traditional paper living wills, it is necessary to
examine the rationales for having writing, signature, and attestation
formalities associated with the execution of living wills.  Although
living wills and wills that dispose property at death differ in
significant respects,58 the formalities associated with the execution
of living wills are similar to those associated with the execution of
ordinary wills.  Both instruments have writing, signature and
attestation requirements.59  Therefore, the framework used for the
examination of the formalities associated with ordinary wills60 is
also helpful when applied to living wills.  Professor Langbein
identified four discrete functions to attribute to these formalities:
evidentiary, channeling, cautionary and protective functions.61 
However, as Professor Fuller pointed out, although these four
functions can be distinguished, "it is obvious that there is an
intimate connection b
etween them.  Generally speaking, whatever tends to accomplish one of
these purposes will also tend to accomplish the [others]."62  The
writing, signature and attestation formalities each serve these four
functions to varying degrees.  
     The evidentiary function of formalities is to provide reliable
evidence of the declarant's intent and the terms of the declaration. 
The writing requirement ensures that the declarant's wishes will "be
cast in reliable and permanent form."63  The signature requirement "is
meant to produce evidence of genuineness."64  The unique nature of
individual signatures and the indelible nature of ink allows signed
documents to be identified with the particular signer.  The
declarant's signature serves as evidence of the declarant's intention
to be bound by the terms of the particular declaration.  Furthermore,
the attestation requirement attempts to provide trustworthy evidence
of the declarant's competence and the circumstances the of execution. 
The evidentiary function of formalities is important for living wills
because the living will speaks for the author after he or she is no
longer able to communicate.
     The channeling function of formalities is to provide a method for
the legally effective expression of intention.65  Professor Fuller
compares the channeling function to the role of language: "One who
wishes to communicate his thoughts to others must force the raw
material of meaning into defined and recognizable channels. . . ."66 
The channeling function is fulfilled by the use of standardized
formalities which provide a recognizable method for individuals to
exercise their rights of prospective autonomy.   Professor Langbein
points out that "[t]he channeling function has both social and
individual aspects."67  With respect to the social aspect of
channeling, one commentator has suggested, "the uniform nature of
formalities fulfills the channelling function because uniformity
reduces litigation and uncertainty, thus creating an efficient
administrative system."68  The efficient administration of living
wills which results from the use of standardized formalities benefits
society by reducing the cost so
ciety incurs to distinguish valid from invalid living wills.  The
individual aspect of channeling refers to the benefit an individual
receives from using standardized formalities to express desires in a
legally binding manner rather then devising a unique mode of
expression.  The compliance with standardized formalities ensures the
declarant that his or her intent will be effectuated and eliminates
the uncertainty that would be associated with using a unique mode of
communication to clearly and convincingly express intent.  Given the
right of states to impose a clear and convincing evidence standard
under Cruzan, the channeling function is particularly important with
respect to living wills.  Since individuals must establish their
desires to refuse treatment by clear and convincing evidence, the
requirement of standardized formalities provides a "channel" for
individuals to express their desires clearly and convincingly.  By
complying with the writing, signature and attestation requirements, an
individual ha
s the ability to exercise his or her right to refuse unwanted medical
treatment.
     The cautionary function of formalities is to impress upon the
declarant the legal significance of the declaration and thereby ensure
the deliberate intent of the declarant.69  The writing requirement
forces the declarant to distinguish the declaration from casual
conversation.  The physical act of signing the declaration signifies
the legal importance of the document.  In addition, "[t]he signature
tends to show that the instrument was finally adopted . . . and to
mitigate against the inference that the writing was merely a
preliminary draft . . . or haphazard scribbling."70  Professor
Langbein pointed out, "[t]he formalities associated with attestation
also serve cautionary policies.  The execution . . . is made into a
ceremony impressing the participants with its solemnity and legal
significance."71  Given that living wills concern the serious matter
of an individual's future dying process, such declarations should
require deliberate consideration.
      The protective function of formalities has traditionally been
assigned the role of protecting the declarant from undue influence at
the time of execution.  Protection from undue influence has usually
been associated with the witness qualification restrictions72 of the
attestation requirement which are designed to surround the declarant
by unbiased witnesses who will not be motivated to coerce or deceive
the declarant.73  However, Professor Langbein has criticized the
protective function of formalities:

The attestation [qualification] formalities are pitifully inadequate
to protect the testator from determined crooks, and have not in fact
succeeded in preventing the many cases of fraud and undue influence
which are proved each year. . . . Protective formalities are not
needed.  Since fraud and undue influence may always be proved
notwithstanding due execution, the ordinary remedies for imposition
are quite adequate.74
Professor Chaffin pointed out, "[i]n most cases of fraud or undue
influence, the wrongdoer would be careful not to sign as a witness but
would use disinterested witnesses instead."75  However, since it is
not difficult to envision attempts by uncaring or greedy relations "to
euthanize . . . afflicted kinsman prematurely so as to reap estate
benefits or avoid crippling medical expenses,"76 formalities that tend
to enhance the protective function should be valued.  Furthermore, in
addition to protection from undue influence, another aspect of the
protective function may also be described. The formalities associated
with the execution of a living will also tend to ensure that the
declarant's actual desires are embodied in the legally effective
expression of those desires.  By being required to sign the written
expression of his or her desires, the declarant has the opportunity to
correct accidental or deliberate mistakes in the expression which do
not match his or her intention.  In this sense, the protective f
unction overlaps the evidentiary and cautionary functions.    
       In order to compare the utility of electronic living wills with
that of paper living wills, it is necessary to examine how well the
evidentiary, channeling, cautionary and protective functions are
achieved in the electronic as compared to the paper format.  The
electronic living will can potentially serve the evidentiary function
better than its paper counterpart.  Paper documents with ink
signatures provide evidentiary value due to the difficulty of
alteration77 and the uniqueness of the declarant's signature. 
Electronic documents can be inherently unreliable due to the ease with
which such documents may be changed without a trace; however, as
previously discussed,78 steps can be taken to ensure that electronic
documents provide a greater degree of content integrity and declarant
authentication than even paper documents.79  Electronic living wills
can be stored by the VAN using write-once-read-many (WORM) optical
storage techniques, instead of the common magnetic techniques, to
provide a greater deg
ree of permanence than even paper provides.  Public key encryption
techniques can be employed to ensure authenticity and virtually
eliminate the possibility of deliberate alteration of the document.80 
The complexity of public key algorithms provides declarants with a
greater degree of security from fraud and forgery than achievable
using paper.  Furthermore, error checking protocols can be used to
reduce the likelihood of inadvertent alteration.81  In addition to
foregoing methods of ensuring authentication and content integrity,
the execution of the living will can be videotaped, digitized, and
incorporated into the declarant's electronic living will.  Although a
video living will alone probably would not be accepted as legally
binding under state law,82 video living wills do provide special
advantages.  One commentator has suggested:

The video recording provides a visual nexus between declarant and
document so that intentions are crystallized and mental competency is
undeniably demonstrated.  With videotape, the terminal individual
literally addresses physician, family and (if necessary) the court
even after personal communication becomes impossible.  A written
declaration simply states a disembodied desire to end treatment.
Furthermore, there can be little question as to proper execution of
the written living will if the event is video recorded.83  
Video living wills could be used to reveal fraud in the execution and
provide clear evidence of intent and mental competence.
     The electronic format may actually enhance performance of the
channeling function compared to its paper counterpart.  The channeling
function of living will formalities is to facilitate the ability of
individuals legally to effectuate their desires regarding prospective
autonomy.  Formalities designed to improve the ability of declarants
to clearly and convincingly establish the intent to refuse treatment84
better fulfill the channeling function.  By enhancing the ability of
individuals to establish their intent clearly and convincingly, the
use of video living wills can provide individuals with a greater
degree of certainty that their desires will be effectuated.  The
individual and social aspects of channeling may be improved by the
increased certainty that video can provide.
     The electronic format may also provide a means to improve
fulfillment of the cautionary function.  In the paper format, the
physical act of signing the living will serves to caution the
declarant as to the seriousness of his or her act.  However, the
physical act of signing need not be abandoned in the electronic
format.  Pen-based computers already exist which would allow a
declarant to use a stylus on a "digitizing tablet" to affix his or her
signature to the electronic document.85  An electronic living will
could be designed to utilize message repetition and acknowledgment
techniques to enhance consideration and raise awareness.  In addition,
use of a declarant's private key for encryption may tend to serve the
cautionary function.  Furthermore, the cautionary value of the
"ceremony" associated with attestation could be increased through the
use of video living wills.  By videotaping the execution of the living
will, the solemnity of the event is reinforced due to the presence of
the camera and light
ing equipment.  After the execution, to caution the declarant from
forgetting about the living will and therefore failing to revoke it,86
automated messages could be generated by the VAN periodically and sent
to the declarant requesting reconsideration or re-execution of the
living will.
     The protective function of formalities may also be enhanced by an
electronic format.  Video living wills can be used to reveal undue
influence in a manner not possible with paper living wills.  If the
declarant explains his or her reasons for executing the living will on
videotape, any lack of sincerity or intent will be more evident than
had the declarant merely signed a paper living will.  Furthermore, if
the protective function is also seen to include the role of ensuring
that the declarant's actual intention is embodied in the legal
expression of that intention, then video living wills may also enhance
the protective function by providing a clearer expression of the
declarant's intent.
     The foregoing discussion indicates that an electronic living will
may serve the evidentiary, channeling, cautionary and protective
functions better than a paper living will.  However, determining
whether electronic living wills should replace paper living wills also
requires an examination of the relative costs associated with
fulfilling these functions.  The cost of fulfilling the evidentiary,
channeling, cautionary and protective functions for paper living wills
is relatively low.87  The cost of effecting these functions in the
electronic format depends on the "package of technologies" chosen to
implement the electronic living will.  There are many possible ways to
design an electronic living will.  The problem of choosing the best
"package of technologies" for an electronic living will is complicated
by the constant development of new technologies and the decreasing
cost of older technologies over time.  This paper suggests one
possible solution in order to point out the possible benefits of
electron
ic living wills, but quantification of the cost of implementing
electronic living wills is beyond the scope of this paper. 
Nevertheless, the potential advantages of electronic living wills over
paper living wills justifies legislative facilitation of electronic
living wills notwithstanding their cost of implementation.    
     The proper design of an electronic living will should not include
any technology which costs more to implement than it benefits
declarants in terms of the evidentiary, channeling, cautionary and
protective functions relative to using paper living wills.  Clearly,
the costs of adapting one's computer to handle public key encryption,
purchasing pen-based computer interfaces, or utilizing digitized
videotape may be prohibitive for many individuals.  However, certain
characteristics, such as public key encryption, will need to be
required in order for electronic living wills to fulfill the
evidentiary and cautionary functions as well as paper living wills. 
Nevertheless, the potential for electronic living wills to fulfill the
evidentiary, channeling, cautionary and protective functions better
than paper living wills, improve access and reduce administrative
costs as part of a comprehensive electronic medical records system, 
justifies the adoption of state or federal legislation intended to
facilitate the 
use of properly designed electronic wills.


IV. Conclusion

     Although electronic living wills would not comply with the
statutory writing and signature requirements imposed by state law,
properly designed electronic living wills have the ability to fulfill
the evidentiary, channeling, cautionary and protective functions
underlying writing, signature and attestation requirements better than
their paper counterparts.  Therefore, state living will statutes
should be amended to allow for the use of electronic living wills or
federal legislation should be adopted to preempt state laws which
preclude electronic living wills.  However, electronic living wills
should not be mandated as long as the cost of executing an electronic
living will which adequately serves the evidentiary, channeling,
cautionary and protective functions is prohibitive for many
individuals.
     Although the foregoing analysis focused specifically on living
wills, it is equally applicable to other documents which also have
writing, signature or attestation requirements for legal validity. 
Formalities of execution need not be abandoned in the electronic
format.  Furthermore, the objectives underlying formalities of
execution may be fulfilled in the electronic format better than in the
paper format.  Therefore, legislatures should facilitate the use of
properly designed electronic documents by amending  laws which
preclude their use.









Jon Michael Dumont
Third year student, Villanova University, School of Law
Computer Science and Legal Reasoning Seminar
May 1993

1. See infra notes 43 to 46 and accompanying text. 

2. Generally, a living will is a device which allows a competent adult
to designate in a legally binding manner, whether or not the declarant
wishes to receive medical treatment should she become terminally ill
and incompetent.

3. See infra notes 17 to 24 and accompanying text.

4. See infra notes 32 to 34 and accompanying text.

5. 110 S.Ct. 2841 (1990).  Nancy Cruzan became incompetent due to
severe head injuries sustained in an automobile accident.  Id. at
2844.  Although Nancy had never executed a living will when competent,
once it became apparent that Nancy was in a persistent vegetative
state, her parents sought a court order directing the withholding of
nutrition and hydration provided by the gastrostomy tube surgically
implanted into Nancy's stomach. Id. at 2845.  The U.S. Supreme Court
held that since no clear and convincing evidence existed that Nancy
would have desired the withdrawal of nutrition and hydration
equipment, Nancy's parents lacked the authority to effectuate such
withdrawal. Id. at 2855.

6. The phrase "right to die" appears in quotations to indicate that
the words are not meant in the colloquial sense.  

A patient's exercise of the right to die is a form of euthanasia. . .
.  Ethicists distinguish between active euthanasia, the active
administration of a death-producing agent to accelerate death, and
passive euthanasia . . . the withholding or termination of
life-sustaining medical treatment to allow a disease to run its
natural course.  Ethicists also distinguish between voluntary and
involuntary forms of euthanasia.  The term "right to die" generally
refers to passive voluntary euthanasia.  Courts upholding a right to
die usually characterize it as a right to refuse life-sustaining
medical treatment.

Comment, The Right to Die: An Exercise of Informed Consent, Not an
Extension of the Constitutional Right to Privacy, 58 U. Cin. L. Rev.
1367 (1990).

7. After assuming that a 14th Amendment liberty interest to refuse
medical treatment exists for competent adults, the Court weighed this
interest against those of the state in protecting and preserving human
life.  The Court found this state interest sufficiently important to
justify Missouri in requiring that a patient's wishes to refuse
life-sustaining medical treatment be established by clear and
convincing evidence.  Cruzan, 110 S.Ct. at 2853.  For a more
comprehensive discussion of the constitutional issues in Cruzan, see
Comment, Living Will Statutes in Light of Cruzan v. Director, Missouri
Department of Health: Ensuring that Patient's Wishes Will Prevail, 40
Emory L. J. 1305, (1991) (authored by Elizabeth D. McLean)
[hereinafter McLean].

8. See McLean at 1305 n.3.  Although the Cruzan opinion does
specifically discuss the validity of living wills, it appears that at
least Justice O'Connor would uphold them as valuable indication of a
patient's intent.  Id. at 1313-14.  See Cruzan, 110 S.Ct. at 2857
(O'Connor, J., concurring) ("[F]ailures [to honor a patient's intent]
might be avoided if the State considered an equally probative source
of evidence: the patient's appointment of a proxy to make health care
decisions on her behalf.").

9. See Cruzan, 110 S.Ct. at 2859 (O'Connor, J., concurring).  Justice
Scalia maintained that states may restrict a patient's right to refuse
medical treatment as their legislatures deemed appropriate.  Id. at
2859 (Scalia, J., concurring).

10. State statutes which govern the use of living wills are referred
to by various names, including: living will, death with dignity,
natural death, and right to die statutes.  For a list of the forty-two
statutes, see Note, Living Wills and Alternatives to Living Wills: A
Proposal -- The Supreme Trust, 26 Val. U. L. Rev. 567, 567 n.2 (1992)
(authored by Craig K. Van Ess). 

11. The diversity of state law on the legal effectiveness of living
wills presents interesting conflict of laws problems which are beyond
the scope of this paper.  However, at least two states have attempted
to provide for the recognition of living wills executed in other
states.  Compare Minn. Stat. Ann.  145B.16 (West 1993) ("A living
will executed in another state is effective if it substantially
complies with this chapter.") with Tenn. Code Ann.  32-11-111 (1992)
("A living will . . . executed outside of this state by a nonresident
. . . at the time of execution shall be given effect in this state if
that living will is in compliance with either the provisions of this
chapter or the laws of the state of the declarant's residence.").

12. See e.g., Ind. Code Ann.  16-8-11-11(a) (West 1992) ("A person
who is of sound mind and is at least eighteen (18) years of age may
execute . . . a living will declaration. . . .")  Most statutes
provide that the living will of a competent woman becomes ineffective
if she is pregnant.  See e.g., Ind. Code Ann.  16-8-11-11(d) (West
1992) ("The living will declaration of a person diagnosed as pregnant
by the attending physician has no effect during the person's
pregnancy.").

13.  Most living will statutes define what constitutes "terminal
illness" or a "terminal condition."  See e.g., Ga. Code Ann. 
31-32-2(13) (1992).

"Terminal condition" means incurable condition caused by disease,
illness, or injury which, regardless of the application of
life-sustaining procedures, would produce death.  The procedure for
establishing a terminal condition is as follows:  two physicians, one
of whom must be the attending physician, who, after personally
examining the declarant, shall certify in writing, based upon
conditions found during the course of their examination, that:
(A) There is no reasonable expectation for improvement in the
condition of the declarant; and
(B) Death of the declarant from these conditions will occur as a
result of such disease, illness, or injury.

Id.

14. Some "right to die" statutes apply when a patient enters a 
"persistent vegetative state."  See e.g., Ga. Code Ann.  31-32-2(9)
(1992).

"Persistent vegetative state" means a state of severe mental
impairment in which only involuntary bodily functions are present and
for which there exists no reasonable expectation of regaining
significant cognitive function.  The procedure for establishing a
persistent vegetative state is as follows: two physicians, one of whom
must be the attending physician, who, after personally examining the
declarant, shall certify in writing, based upon conditions found
during the course of their examination, that:
(A) The declarant's cognitive function has been   substantially
impaired; and
(B) There exists no reasonable expectation that the declarant will
regain significant cognitive function.

Id.

15.  Most living will statutes define what constitutes life sustaining
procedures or life prolonging procedures.  See e.g., Ga. Code Ann. 
31-32-2(6) (1992). 

"Life-sustaining procedures" means any medical procedures or
interventions, which, when applied to a patient in a terminal
condition or in a coma or persistent vegetative state with no
reasonable expectation of regaining consciousness or significant
cognitive function, would serve only to prolong the dying process and
where, in the judgment of the attending physician and a second
physician, death will occur without such procedures or interventions.
The term "life-sustaining procedures" may include, at the option of
the declarant, the provision of nourishment and hydration, but shall
not include the administration of medication to alleviate pain or the
performance of any medical procedure deemed necessary to alleviate
pain.

Id. Some living will statutes specifically exclude nutrition and
hydration from the definition of what constitutes life prolonging
procedures.  See Ind. Code Ann.  16-8-11-4 (West 1993)
("`Life-prolonging procedure` does not include the provision of
appropriate nutrition and hydration, the administration of medication,
or the performance of any medical procedure necessary to provide
comfort care or to alleviate pain.")  Other statutes do not explicitly
state whether or not nutrition and hydration constitute life
prolonging procedures.  See N.M. Stat Ann.  24-7-2(C) (1992)
("`[M]aintenance medical treatment` means medical treatment designed
solely to sustain the life processes.").

16.  See e.g. Minn. Stat. Ann.  145B.03.1 (West 1993) ("A competent
adult may make a living will of preferences or instructions regarding
health care.  These preferences or instructions may include, but are
not limited to, consent to or refusal of any health care, treatment,
service, procedure, or placement.") (emphasis added).  In such a
state, someone who is a "vitalist," and believes that life is so
sacred as to demand preservation to the last possible moment, may
execute a living will requesting the continuation of all life
preserving treatment no matter how dismal the patient's ultimate
condition.  See Cantor, Prospective Autonomy: On the Limits of Shaping
One's Postcompetence Medical Fate, 8 J. Contemp. Health L. & Pol'y 13
(1992).

17. Many living will statutes provide for the situation where a
declarant is physically unable to sign his or her declaration.  See
e.g., Fla. Stat. Ann.  765.04(1) ("If the declarant is physically
unable to sign the written declaration, his declaration may be given
orally, in which event one of the witnesses must subscribe the
declarant's signature in the declarant's presence and at the
declarant's direction.").

18. See e.g., Tenn. Code Ann.  32-11-104(a) (1992).  However, at
least one state allows for a notary public to substitute for two
witnesses.  See Minn. Stat. Ann.  145B.03 (West 1992).

19. See e.g., Ga. Code Ann.  31-32-3(a) (1992).

Such living will shall be signed by the declarant in the presence of
at least two competent adults who, at the time of the execution of the
living will, to the best of their knowledge:
(1) Are not related to the declarant by blood or marriage;
(2) Would not be entitled to any portion of the estate of the
declarant upon the declarant's decease under any testamentary will of
the declarant, or codicil thereto, and would not be entitled to any
such portion by operation of law under the rules of descent and
distribution of this state at the time of the execution of the living
will;
(3) Are neither the attending physician nor an employee of the
attending physician nor an employee of the hospital or skilled nursing
facility in which the declarant is a patient;
(4) Are not directly financially responsible for the declarant's
medical care; and
(5) Do not have a claim against any portion of the estate of the
declarant.

Id.

20. Gelfand, Living Will Statutes: The First Decade, 1987 Wis. L. Rev.
737, 758 (1987) [hereinafter Gelfand].  Witness qualification
"restrictions  serve to ensure that reasonably neutral persons are
present when the declarant makes such an important decision, because
the declarant may feel freer to reconsider his decision away from the
subtle pressures of interested parties."  Id.

21. Compare Wis. Stat. Ann.  154.03 (West 1992) (mandatory) with
Alaska Stat.  18.12.010 (1991) (optional). 

22. Not all states require the declarant to deliver the original
living will to his or her health care provider.  Compare Minn. Stat.
Ann.  145B.05 (West 1992) ("A living will becomes operative when it
is delivered to the declarant's physician or other health care
provider.") with Tenn. Code Ann.  32-11-104(b) (1992) ("It shall be
the responsibility of the declarant or someone acting on his behalf to
deliver a copy of such living will or declaration to the attending
physician and/or other concerned health care provider.") and W. Va.
Code  16-30-3(c) (1992) ("It shall be the responsibility of the
declarant to provide for notification to his or her attending
physician and other health care providers of the existence of the
living will.").

23. See Miss. Code Ann.  41-41-107(2) (1972) ("The declaration shall
be filed with the bureau of vital statistics of the state board of
health.").

24. N.C. Gen. Stat.  90-321(d) (1992).   

    The above declaration may be proved by the clerk or the assistant
clerk, or a notary public in the following manner:
(1) Upon the testimony of the two witnesses; or
(2) If the testimony of only one witness is available, then
  a. Upon the testimony of such witness, and
  b. Upon proof of the handwriting of the witness who is  
     dead or whose testimony is otherwise unavailable, and
  c. Upon proof of the handwriting of the declarant, unless   
     he signed by his mark; or upon proof of such other   
     circumstances as will satisfy the clerk or assistant    
     clerk of the superior court, or a notary public as to    
     the genuineness and due execution of the declaration.
(3) If the testimony of none of the witnesses is available, such
declaration may be proved by the clerk or assistant clerk, or a notary
public
  a. Upon proof of the handwriting of the two witnesses   
     whose testimony is unavailable, and
  b. Upon compliance with paragraph c of subdivision (2)    
     above.
    Due execution may be established, where the evidence required
above is unavoidably lacking or inadequate, by testimony of other
competent witnesses as to the requisite facts.
    The testimony of a witness is unavailable within the meaning of
this subsection when the witness is dead, out of the State, not to be
found within the State, insane or otherwise incompetent, physically
unable to testify or refuses to testify.
    If the testimony of one or both of the witnesses is not available
the clerk or the assistant clerk, or a notary public or superior court
may, upon proper proof, certify the declaration as follows:

"Certificate"

"I .........., Clerk (Assistant Clerk) of Court for the Superior Court
or Notary Public (circle one as appropriate) of .......... County
hereby certify that based upon the evidence before me I am satisfied
as to the genuineness and due execution of the attached declaration by
.........., declarant, and that the declarant's signature was
witnessed by ......, and .........., who at the time of the
declaration met the qualifications of G.S. 90-321(c)(3).
"This the .... day of ......, ....
......................................................... Clerk
(Assistant Clerk) of Superior Court or Notary Public (circle one as
appropriate) for ...... County."

Id.  A health care provider relying on a "proven" living will is
immune from civil and criminal liability.  N.C. Gen. Stat.  90-321(h)
(1992).
  
25. Gregory Gelfand has expressed the view that

[i]t seems doubtful that . . . [North Carolina's] provision is
constitutional as it delegates what appears to be judicial power to
persons who are not capable of exercising that authority. The
objection is not only one of form but is of some substance as well. A
notary or a clerk of the court has no discretion and cannot conduct a
serious inquiry if there are questions to be resolved.

Gelfand at 760-61.  See Saunders v. State, 492 N.Y.S.2d 510, 129
Misc.2d 45 (1985) (action seeking declaratory judgment as to validity
of living will presented justiciable issue).

26. See e.g., Minn. Stat. Ann.  145B.10 (West 1992).

27. Gelfand at 756.

28. See e.g., Minn. Stat. Ann.  145B.09 (West 1992).

A living will under this chapter may be revoked in whole or in part at
any time and in any manner by the declarant, without regard to the
declarant's physical or mental condition.  A revocation is effective
when the declarant communicates it to the attending physician or other
health care provider.  The attending physician or other health care
provider shall note the revocation as part of the declarant's medical
record.

Id.  The only formality in this statute is the requirement that the
revocation be communicated to the attending physician.  Other statutes
also utilize formalities that identify the event of revocation such as
physical destruction.  See Ind. Code Ann.  16-8-11-13(a)(2) (West
1992).

29. See Francis, The Evanescence of Living Wills, 24 Real Prop. Prob.
& Tr. J. 141, 152 (1989).  For a discussion of the ethical issues
posed by second hand reports of patient desires, see Case Study: A
Cardiac Arrest and a Second Hand Report, 16 Hastings Center Rep. 15
(Dec. 1986).

30. Gelfand at 768.

31. Miss. Code Ann.  41-41-109 (1972).  In Mississippi, revocations
must be written, signed, witnessed, and filed with the state bureau of
vital statistics.

32. See e.g., W. Va. Code  16-30-3(c) (1992) ("An attending
physician, when presented with the living will, shall make the living
will or a copy of the living will a part of the declarant's medical
records.").

33. Pub.L. No. 101-508, ss 4206(a), 4751(m), 104 Stat. 1388-116,
1388-205 (1990) (to be codified at 42 U.S.C. ss 1395, 1396).

    The PSDA is the first significant federal legislation concerning
the use of advance directives to control health care treatment and
decisions.  The purpose of the PSDA is to inform the public about and
increase the use of these advance directives.  To achieve these
objectives, the PSDA assigns specific functions to the states, to any
organization eligible for Medicare or Medicaid, and to the Department
of Health and Human Services. 
    Under the PSDA, each state must develop a written description of
its statutory or judicial law concerning advance directives for
dissemination and use by health care providers. . . . In addition to
developing written descriptions, states must ensure that each health
care provider receiving Medicare or Medicaid funds complies with the
duties imposed on them by the PSDA.
    Health care organizations, including hospitals, skilled nursing
facilities, home health agencies, and hospice programs, where
approximately eighty percent of all individuals die, have more
extensive duties under the PSDA.

Comment, The Patient Self-Determination Act of 1990: Health Care's Own
Miranda, 8 J. Contemp. Health & Pol'y 455, ___ (1992) (footnotes
omitted) (authored by Michael A. Refolo).

34. Id. (footnotes omitted).  See  4206(a), 104 Stat. at 1388-115 to
-116. 

35. See e.g., Ga. Code Ann.  31-32-8(a)(2) (1992). 

Prior to effecting a withholding or withdrawal of life-sustaining
procedures from a patient pursuant to a living will, the attending
physician . . . [s]hall, without delay after the diagnosis of a
terminal condition of the declarant, take the necessary steps to
provide for the written certification . . . of the declarant's
terminal condition, coma, or persistent vegetative state.

Id.  Since a complete examination of all state living will statutes is
beyond the scope of this paper, it is assumed that such written
certifications are required under each state's law.

36. See e.g., Miss. Code Ann.  41-41-113 (1972) (requires declarant's
physician and two other physicians to concur).

37. Gelfand at 763.

38. Id. at 765.  One commentator has suggested, "[t]he problem created
by physician disagreement is twofold: while giving a veto to the first
additional physician is too harsh, allowing physician-shopping dilutes
the safeguard into nonexistence. The wisest provision for subsequent
statutes would require judicial intervention when the first additional
physician consulted disagrees with the initial certification."  Id.

39. Id. at 764.

40. See e.g., W. Va. Code  16-30-7(a) (1992).

No health care provider or employee thereof who in good faith and
pursuant to reasonable medical standards causes or participates in the
withholding or withdrawing of life-prolonging intervention from a
person pursuant to a living will made in accordance with this article
shall, as a result thereof, be subject to criminal or civil liability.

Id.  Compare Ariz. Rev. Stat. Ann.  36-3261(C) (1992) ("A health care
provider who makes good faith health care decisions based on the
provisions of an apparently genuine living will is immune from
criminal and civil liability for those decisions. . . .").

41. See e.g., W. Va. Code  16-30-7(b) (1992).

An attending physician who cannot comply with the living will of a
declarant pursuant to this article shall, in conjunction with the
health care representative, next of kin of the declarant or other
responsible person, effect the transfer of the declarant to another
physician who will honor the living will of the declarant. Transfer
under these circumstances does not constitute abandonment.

Id.

42. Grace Plaza v. Elbaum, 588 N.Y.S.2d 853, 183 A.D.2d 10 (1992).  In
Grace Plaza, the comatose patient, Jean Elbaum, had never executed a
living will nor provided for a surrogate decision maker to consent to
or refuse medical treatment on her behalf.  Since there was no clear
and convincing evidence that Ms. Elbaum would have refused treatment,
her health care provider continued to administer life support
notwithstanding attempts by Ms. Elbaum's conservator to have the
treatment discontinued.      The Court found, "[t]he legal obligation
to provide adequate nutrition and hydration to . . . patients ceases
only after a trier of fact has been persuaded that the patient held a
firm and settled commitment to the termination of life supports under
the circumstances like those presented."  Grace Plaza at 857, 183
A.D.2d at 15.  If a living will has been executed in accordance with
state law, a court order allowing the withdrawal of treatment or
transfer of the patient should not be difficult to obtain.  See also
 McVey v. Englewood Hosp. Assoc., 216 N.J. Super. 502, 524 A.2d 450
(1987) (hospital and physicians not liable for failing to comply with
comatose patient's undocumented oral request to terminate life
support).

43. S. 2878, 102nd Cong. 2d Sess. (1992).  Introduced at 138 Cong.
Rec. S8659-04 (1992).  This legislation "died" after the 102nd
Congress.

44. S. 2878, 102nd Cong. 2d Sess.  2210 (1992).  Also at 138 Cong.
Rec. S8659-04, S8661 (1992).

45. S. 2878, 102nd Cong. 2d Sess.  2230(a) (1992).  Also at 138 Cong.
Rec. S8659-04, S8662 (1992).

46. S. 2878, 102nd Cong. 2d Sess.  2231(a) (1992).  Also at 138 Cong.
Rec. S8659-04, S8662 (1992).

47. 138 Cong. Rec. S8659-04, S8666 (1992).

48. Examples of critical information include a history of diabetes,
epilepsy, hemophilia and drug allergy.

49. 1992 WL 140500 (Cong. Rec.)

50. See supra notes 32 to 34 and accompanying text.

51. The Internet is a globally interconnected, multiprotocol network
supporting research, educational and commercial uses.  

52. "Hypertext" pointers would utilize a standardized addressing
scheme to create links between documents stored in different
computers.  See T. Nelson, Virtual World Without End (Sept. 7, 1990)
(Presentation to Cyber Arts International Conference) (describes
Xanadu software for keeping track of interconnections of documents).

53. Public key encryption is but one of many possible ways to improve
the reliability of electronic records.  Public key encryption is based
upon the RSA Cryptosystem which

utilize[s] large integer arithmetic to create algorithms that are
asymmetric in the sense that encoding of a [document] . . . can be
performed with one part of the key while decoding requires a different
part of the key. . . . [T]he private part of the key is used only by
the key's owner to [execute the document], and the public part of the
key is used by any receiver to verify the . . . [document].  The
security . . . comes by virtue of the complexity of the algorithm used
to create . . . [the encrypted document].  

T. Jones, Implementation of a PC Based Digital Signature System 3
(Nov. 12-13, 1992) (Presentation to NIST Workshop on Security
Procedures for the Interchange of Electronic Documents).  In addition
to providing virtual certainty as to the originator's authentication,
this technique also dramatically reduces the possibility of deliberate
alteration of the document.  

54. It may be necessary to equip the PC with a digital signal
processor so that it will be able to efficiently implement the
algorithms used for public key encryption.  See T. Jones,
Implementation of a PC Based Digital Signature System 4 (Nov. 12-13,
1992) (Presentation to NIST Workshop on Security Procedures for the
Interchange of Electronic Documents).

55. Analog audio and video signals can be digitized and stored in
binary form.  Once in binary form, the video can be appended to the
electronic living will file.  However, it should be noted that use of
digitized video may require additional investment in the specialized
hardware needed to take advantage of this technology.

56. In order to prevent deliberate alteration of information on the
server, physical security must be assumed.  See J. Tygar & B. Yee,
Dyad: A System for Using Physically Secure Coprocessors (Dec. 1992). 

57. See supra notes 35 to 39 and accompanying text.

58. One commentator has suggested: 

Despite their similarity of nomenclature, living wills and ordinary
wills are very different types of advance directives. . . . The law of
ordinary wills reflects liberal political theory about the rights of
individuals to do as they wish with their property, tempered by the
social need for certainty about control of property. The emerging law
of living wills limits autonomous choice by the preservation of life. 

Francis, The Evanescence of Living Wills, 24 Real Prop. Prob. & Tr. J.
141, 141-42 (1989).  Although ordinary wills and living wills have
different underlying policies, the obvious similarity between these
instruments is that both speak for the declarant after he or she is no
longer able to regarding an important matter of personal choice. 
Formalities are important just for this reason.    

59.  The formalities for witnessed wills originated with the Statute
of Frauds of 1677.  This statute provides in part:

[A]ll devises and bequests of any lands or tenements . . . shall be in
writing and signed by the party so devising the same . . . and shall
be attested and subscribed in the presence of the said devisor by
three or four credible witnesses, or else they shall be utterly void
and of none effect.

Statute of Frauds, 1677, 29 Car. 2, ch. 3,  5.

60. See Langbein, Substantial Compliance with the Wills Act, 88 Harv.
L. Rev. 489, 492-97 (1975) [hereinafter Langbein].

61. Id.

62. Fuller, Consideration and Form, 41 Colum. L. Rev. 799, 803 (1941)
[hereinafter Fuller].

63, Gulliver & Tilson, Classification of Gratuitous Transfers, 51 Yale
L.J. 1, 6 (1941) [hereinafter Gulliver & Tilson].

64. Langbein at 493.

65. See Fuller at 801.

66. Fuller at 802.

67. Langbein at 494.

68. Note, An Analysis of the National Advisory Committee on Uniform
State Laws' Recommendation to Modify the Wills Act Formalities, 10
Prob. L.J. 283, 283 (1991).

69. See Langbein at 495 ("[Formalities] caution the testator, and they
show the court that he was cautioned.").

70. Gulliver & Tilson at 5.

71. Langbein at 495.

72. See supra notes 19 and 20 and accompanying text.

73. Langbein at 496.

74. Langbein at 496.  Most living will statutes have provisions
covering fraud and undue influence.  See supra note 26 and
accompanying text.

75. Chaffin, Execution, Revocation, and Revalidation of Wills: A
critique of Existing Statutory Formalities, 11 Ga. L. Rev. 297, 317
(1977).

76. Buckley, The Case for the Videotaped Living Will, 2 Prob. & Prop.
30, 30 (1988) [hereinafter Buckley].

77. An individual's ink signature on one document cannot easily be
transferred to another document.

78. See supra notes 53 to 56 and accompanying text.

79. See Perritt, The Electronic Agency and the Traditional Paradigms
of Administrative Law, 44 Admin. L. Rev. 79 (1992) ("A variety of
techniques for authenticating electronic documents exist that are as
good or better than traditional handwritten signatures.").  Since
electronic documents can be authenticated both in terms of author
identity and content integrity with as much, if not more, certainty
than paper documents, there is no reason that an electronic living
will should be considered any less reliable than a paper living will. 


80. See supra note 53 regarding the use of public key encryption.

81. Baum & Perritt, Electronic Contracting, Publishing and EDI Law,
Section 1.11 (Wiley 1991).

82. See supra note 17 and accompanying text regarding statutory
writing and signature requirements.  One commentator expressed the
view that "under current state laws, a videotape of a declarant
indicating his or her wishes to withdraw or withhold life-sustaining
medical care would merely serve as ordinary evidence of the patient's
intent. Such a video recording would not be accepted as an independent
living will."  Buckley at 30.  See also L. Waggoner, R. Wellman, G.
Alexander & M. Fellows, Family Property Law 171 (1991) ("A videotape
has not yet been recognized as a writing and cannot operate as the
will itself.").

83. Buckley at 31.

84. Under Cruzan states may require clear and convincing evidence of a
patient's desire to refuse life-sustaining treatment.  See supra notes
5 to 11 and accompanying text.

85. See generally, Computers Advancing Rapidly Back to the Pen, N.Y.
Times, Jan. 6, 1993, at D2, col. 1.  Use of a physical signature
requirement would be primarily aimed at fulfilling the cautionary
function.  Although the unique nature and indelible quality of
signatures in the paper format also serves an evidentiary or
authentication function, electronic signatures may be easily copied
and transferred without a trace thereby complicating authentication. 
However, public key encryption may be used to overcome this problem. 
See also T. Jones, Implementation of a PC Based Digital Signature
System (Nov. 12-13, 1992) (Presentation to NIST Workshop on Security
Procedures for the Interchange of Electronic Documents).

86. See supra notes 28 to 31 and accompaying text regarding the lack
of formality associated with the revocation of living wills.

87. These costs would include access to a written living will form
valid in the declarant's jurisdiction, a pen, and the cost of
delivering the living will the declarant's health care provider.  


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