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Washington Law Review

Abstract

Death is difficult—even for lawyers who counsel clients on end-of-life planning. The predominant approach to counseling clients about death relies too heavily on traditional notions of personal autonomy and a nearly impenetrable right to be free from interference by others. Rooted in these notions, contracts called “advance directives” emerged as the primary tool for choosing one’s final destiny. Nevertheless, advance directives are underutilized and ineffective because many people are mired in death anxiety, indecision, and the weight of planning for a hypothetical illness. In the end, many do not get the death they choose: to trust in others and share the arduous decision-making responsibility with loved ones.

This Article proposes that lawyers shift away from a rights-based paradigm that insists clients make decisions alone, unobstructed by family and friends. Instead, it offers an alternative counseling model that draws on relational autonomy and values the inherent interplay between client independence and interdependence. Grounded in feminism, relational autonomy reimagines individualistic conceptions of self and identity to embrace our essential social and connected nature. Lawyers can enhance end-of-life decision-making to be in alignment with client goals by refocusing it from a solitary experience to one inclusive of the interests and participation of loved ones. While death is inevitable, we no longer need to insist it is done alone.

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