Living will remedy against medical conflicts when facing death

Living will as a remedy against medical conflicts when facing death

People deciding to get a living will increase each year in Spain, although it still is a legal resource used by a minority of people in our country.

The number of people choosing to get a living will is growing every year. If in January 2013 they were 145,775, in the same month of 2014 were 161,328, in 2015, 180,327; and by January 2016 the figure reached 198,751 people, according to the data provided by the National Registry for Advanced Decision from the Ministry of Health, Social Services and Equality.

In the first half of 2016 the figure had already reached 186,396 people, 24,402 of them being foreigners, so, the final figure to be registered by the month of January 2017 could be even higher.

A living will is also known as “advanced care directives” or “letter of intent”. It is a document that provides instructions as to the health care a person wants to receive in a medical situation where he or she is incapacitated or unable to communicate his or her will or, once dead, the fate of his or her body or organs.

In Spain, this legal document is not well known yet,  and it causes certain moral rejection as it is usually identified with euthanasia. In truth, it is more related to a dignified death or orthothanasia, which fundamental difference with euthanasia is that at no time deliberately seeks to advance the patient’s death.

In this respect, with this statement of wills patients are able to request that a treatment be discontinued or that life support measures that unnecessarily prolong their life not be applied; to monitor the symptoms that cause pain or unnecessary suffering, or not to be given inefficient treatment for artificial prolongation of life.

Legally, the living will is regulated by Spanish Law 41/2002 of patient autonomy (Art. 11). Getting this document is an easy, fast and efficient process that has the advantage that patients can avoid future legal conflicts, as well as conflicts of interests with family and medical staff in situations of disability and inevitable death.

The right to a living will is available to all people of legal age, emancipated minors, as well as to those legally suspended whose sentence does not prevent them from that right.

Thus, the patient’s will is limited only by the law itself, by the factual circumstances related to the statement made by the patient in his or her advanced decisions and by the lex artis. The latter refers to “evaluative criterion on the specific medical act performed by the medical professional,” according to the Sentence 4237/2007 of 16 April.

Once the living will is done, the advanced instructions will be registered in the register of the relevant Autonomous Community and in the National Register under the Ministry of Health.

The Living Will procedure can be completed by presenting three witnesses (two of them are not to be second-degree relatives, nor to have a hereditary relationship with the applicant) before a Notary Public (witnesses not required), or before the Register staff.

The fact that advanced directives are a legal resource increasingly used by citizens will not only help reduce medical disputes in such critical situations, but will also improve people’s opinion about palliative care and development, and will foster the demythologizing of dignified death.

If you have any legal doubt on your legacy or assets preservation, please do not hesitate to contact us for advice at clerk@delcantochambers.com

Del Canto Chambers’ Editorial Board

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