No matter what kind of helpless situation is involved, in order for the will to be carried out one day as desired, people need fellow human beings by their side. This applies in particular to the use of living wills, health care proxy and care proxy. Here we tell you what your patients should look out for.
In the case of living wills, health care proxy and care proxy, these are medical and legal arrangements. Therefore, it is advisable to implement things together with specialist and lawyer. Later, when it comes down to it, their help may become necessary again, so that one’s own will is actually put into practice. It is very important that the documents we are dealing with should be of lasting value. This requires regular – often annual – “inspection”, i.e. checking and renewal. This review is already recommended because life changes, often also the state of health – all these changes can then also make adjustments necessary.
The living will
In order to enforce a living will, it is often necessary to have a person of trust who is authorised to make advance directives. If there is more than one person, the relationship between them must also be regulated. In addition, remuneration or compensation must be regulated, as well as the question of expenses if a lawyer is to be able to assist the trusted person in asserting the patient’s will. Hardly any form can reflect personal motives, experiences and insights. Vague or indeterminate formulations such as “dignified treatment” or “no apparatus medicine” leave room for many possible interpretations and are rarely respected. It makes sense to have the doctor and lawyer involved in the wording. Many organizations as well as professional lawyers have sample forms available. Caution is advised there and you should have them explained to you very carefully before using them. Later, the will must be recognizable to everyone. It is essential to give reasons for decisions. For this to be the case, it must be clear that the person concerned has dealt with his or her specific disease situation. Forms to tick off can lead to the attending physician not feeling bound by the order because essential matters have not been considered or put on paper. It can be devastating in its effect if “artificial feeding” or other measures are generally rejected. Nursing and medical measures should be considered in concrete terms, but also the danger that “the discontinuation of treatment for cost reasons” could thus be facilitated. Certain measures can be specifically demanded, such as “the right to be free of pain” or end-of-life care. Today, palliative care, hospice care and pain therapy are also in line with the times. It is also crucial that the legal capacity or the capacity to understand, but also the testamentary capacity is confirmed by a medical specialist. This saves the authorised representative or the heirs from lengthy discussions later on. The certificate of a general practitioner or a notary or lawyer on this question is often worthless in court because the expertise for medical questions is missing.
In the case of the health care proxy, the authorized representatives require original powers of attorney. If real estate is involved or credit facilities are to be used, a notarial form is necessary. Here, too, it is necessary to regulate whether compensation is to be provided and how expenses are to be dealt with. If the core and focus of a task lies in the legal area, delegation to a lawyer or notary should be provided for. It would also have to be reconsidered how the proxy is now to be controlled – especially if one’s own powers are no longer sufficient for this? Providing two or three people as a team with different tasks might be the safest way. A will should be placed in probate court for safekeeping – that way it can’t get lost. Powers of attorney can be revoked as long as legal capacity exists. For the time thereafter, a control person may be authorized to do so. A patient’s will is only respected when there is no longer decision-making capacity. In addition to the will, depending on the federal state, other documents can also be deposited with a register or court. The options should be examined and considered on an individual basis, as some “depository institutions” are reportedly not automatically queried by either clinics or courts.
The drafting of the guardianship order requires particular care in order not to give the court more discretion than necessary. Again, qualified advice is necessary to ensure that the “informed decision” is documented. Both human dignity and self-determination are enshrined in our Basic Law. Sorting things out for yourself then is an option, not a compulsion, to distance yourself from the general views.
RA Dr. Johannes Fiala, Munich, www.fiala.de
(Der Hausarzt 6/2007, 18)
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About the author
Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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