Clear and Convincing Evidence Needed to Revoke Living Will

Elder Law Answers case summary.The Supreme Court of Oklahoma holds that an incapacitated person may revoke a living will with clear and convincing evidence. In Guardianship of L.A.C. (Okla. No. 120500, February 6, 2024).

An older woman with adult children, L.A.C., suffered from progressive, degenerative diseases. She executed an advance directive, which expressed that she did not want treatment to prolong her life artificially.

L.A.C. lost the ability to speak and was hospitalized for pneumonia. Her daughter, Allison White, became her temporary emergency guardian. She authorized the hospital staff to give her mother a percutaneous endoscopic gastronomy (PEG) tube for hydration and feeding. Entering an assisted living facility, L.A.C. continued to be on the PEG tube.

Her sister, Amy Meyer, claimed to be her attorney-in-fact and objected to the guardianship. The trial court appointed a guardian ad litem, temporarily suspended the advance directive, and ordered the PEG tube to remain in place until they resolved the matter.

They settled, appointing a professional as the guardian and agreeing that the tube and advance directive would both remain in place – despite their apparent contradictions.

The GAL visited and reported that although L.A.C. was nonverbal, she could communicate with her facial expressions. Based on her observations, she recommended that they follow the advance directive. A second GAL perceived that L.A.C. desired tube removal. The daughter and son wanted the tube removed, but the sister wanted it to stay in place. Seeking to remove it, the daughter filed an emergency motion seeking appointment as successor guardian.

At the trial, the GAL testified that after they explained to L.A.C. that removing the tube would cause her pain and starvation, she no longer wanted them to remove it.

The trial court ruled that the use of the tube violated her advance directive. The appellate court disagreed, finding that L.A.C. revoked her advance directive under the preponderance of the evidence standard.

On review, the Oklahoma Supreme Court considers whether an incapacitated person may revoke their advance directive and what standard of proof is required to establish revocation.

The highest court of Oklahoma concludes that an incapacitated or incompetent person may revoke their advance directive. The Oklahoma advance directive statute does not limit when someone can revoke one. It states that someone can revoke an advance directive without regard to physical or mental condition.

The Supreme Court of Oklahoma next turns to the correct standard for revoking an advance directive. While the sister argued for using the preponderance of the evidence standard, the children advocated for the clear and convincing evidence standard, a higher standard. The legislature intended to protect autonomy. The statute requires great deference to their wishes, so a higher standard of proof is needed. The fact that the statute allows a person to revoke an advance directive in many ways does not speak to the type of proof required.

Although an incapacitated person has the right to revoke an advance directive, there must be clear and convincing evidence of their intent to revoke it.

Read the full opinion.