Life Support Withdrawn with No Advance Medical Directive


Though all states now recognize either living wills or healthcare powers of attorney (often called healthcare proxies) as advance medical directives, not everybody executes them. Without an advance medical directive, an individual’s wishes for the application or withdrawal of certain life-sustaining treatments is not legally documented. If an individual who has not executed an advance medical directive becomes incapacitated, he or she has left these agonizing decisions to the family and, potentially, the courts.

Take, for instance, the recent case of Engracia Torregosa Garcia, a Tennessee resident who suffered permanent brain damage resulting from cardiac arrest in June 2001. After being resuscitated, Engracia fell into a chronic vegetative state. She had no advance medical directive.

She was transferred to a hospice, where her PEG feeding tube was removed. Her family immediately filed a petition to replace the life support. A restraining order was issued directing the hospice to replace the tube. During this time, physicians determined that Engracia had no hope of making a recovery. Still, on October 29, 2001, a trial court made the temporary restraining order permanent.

Engracia’s guardian ad litem provided clear and convincing evidence that Engracia would not wish to be subjected to artificial nutrition and hydration. Admitting the evidence was clear, the court still refused to allow the removal of life support. Since Engracia had not executed an advance medical directive, the court ruled it did not have authority to authorize the removal of her life support.

The Tennessee Court of Appeals reversed. According to the Court, Tennessee law recognizes the individual’s right to refuse medical care, including life support. An advance medical directive is one way for an individual to exercise that right. But a person’s failure to execute a particular form does not create a presumption that he or she would not refuse medical care.

The Court remanded the case for a conservator to be appointed to carry out Engracia’s wishes. Of course, an advance medical directive could have accomplished this with less heartache and more certainty for her family.

Juan-Terregosa v. Garcia, Tenn.App., 5-7-2002

Stock Held Outright Must Be Aggregated with Stock over Which Decedent Held Power of Appointment


Aldo and Doris Fontana owned all of the stock in a corporation (Ledyard) as community property. Doris died and left her shares of Ledyard to two trusts for Aldo’s benefit. At the time of his death three years later, Aldo owned 50% of Ledyard outright and held a testamentary power of appointment over another 44.069% of Ledyard stock held in trust.

Aldo exercised his testamentary power of appointment, directing that the stock held in the trust be divided equally between his two children. His will also directed that the stock owned by Aldo outright pass in equal shares to his children. For estate tax purposes, Aldo’s estate valued the 50% block and the 44.096% block separately, determining values of $2,043,500 and $1,747,500, respectively. But the IRS issued a notice of deficiency, concluding that the two blocks must be valued as a single 94.069% block worth $4,850,000.

Before the Tax Court, the estate looked to Estate of Mellinger v. Commr (112 T.C. 26, 1999), in which the Court held that stock owned outright should not be aggregated with stock held in a qualified terminable interest property (QTIP) trust. In that case, Harriett Mellinger owned a block of Frederick’s of Hollywood stock outright, while a second block was held by a QTIP trust for her benefit. While she received income from the trust, she had no control over the ultimate distribution of the stock held by the trust. The obvious difference in the present case is that Aldo held a testamentary power of appointment over the 44.069% block of Ledyard stock.

The Tax Court held in favor of the IRS. The blocks of stock must be aggregated and valued as a single 94.069% interest.

Estate of Fontana v. Commissioner, 118 T.C. No. 16, 3-28-2002