When life comes to an end, we are usually helpless and dependent on others. To ensure that your last will and testament will one day be implemented as you wish, you need fellow human beings at your side who know and respect your wishes. Living wills, health care powers of attorney, etc. are medical and legal arrangements. Therefore, it is advisable to implement things together with a specialist and lawyer. Later, i.e. when it comes down to it, their help may become necessary again. It is crucial that the documents are of lasting value. This requires a regular – often annual – “inspection”, i.e. a review and, if necessary, renewal. Living will In this document, you specify to the doctor treating you in the future what you wish today in the event of your incapacity to make decisions. In order to enforce these wishes, you often need to appoint a person of trust who is authorised to make advance decisions. If there are several persons, the relationship between them must also be regulated. In addition, a remuneration or compensation may have to be regulated as well as the question of expenses if a lawyer is to help the trusted person to enforce your will. Beware of forms Hardly any form can reflect your personal motives, your experiences and findings. General phrases, such as “dignified treatment” or “no apparatus medicine” leave many possibilities for interpretation; therefore, such woolly or vague phrases are much less likely to be respected. Therefore, it makes sense to have physician and lawyer participate in the formulations. It is essential that it is clear how you have dealt with your specific illness situation, i.e. what information you have as the background to your decisions. Otherwise the attending physician can later say that he does not feel bound by your decision because the essential things have not been considered – or have not been put down on paper. Mostly check-off forms have a similarly bad effect. No generalities It can be devastating in its effect if “artificial feeding” or other measures are generally rejected. Nursing and medical measures should be considered specifically, but also the danger that “discontinuation of treatment for cost reasons” could be facilitated by this. Wishes and values, but also experiences of illness lead to changed ideas – in this respect, regular examination and, if necessary, discussion with experts is advisable. In addition, certain measures can be demanded concretely. One might think, for example, of “the right to freedom from pain” or end-of-life care. Today, palliative medicine, hospice care and pain therapy are also in line with the times. It will also be decisive that the legal capacity or capacity to understand, but also if necessary the testamentary capacity, is confirmed by a specialist doctor. This will save the authorised representative or the heirs lengthy discussions later on. No one in Germany is bound by the wish for active euthanasia – it would be a punishable offence. Most information about alternatives abroad can be found on the Internet. Deposit of documents If you make a will, you are well advised to deposit it with the probate court – that way it cannot get lost. Powers of attorney can be revoked by you as long as you have legal capacity – for the time after that, a controlling person may be authorised to do so. A patient’s will is only respected when you yourself are no longer capable of making decisions. n
The author: Dr. Johannes Fiala, lawyer (Munich), mediator (Univ.), MBA Financial Services (Univ.Wales), MM (Univ.), certified financial and investment advisor (A.F.A.), EC expert (C.I.F.E.), lecturer in civil and insurance law (Univ. of Cooperative Education), banker (www.fiala.de).
(MTA Dialog 3/2007, 227)
Courtesy ofwww.mta-dialog.de.
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Dr. Johannes FialaPhD, MBA, MM
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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