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Safeguarding the patient's will

from
Dorothea Wagner
Lawyer
Specialist in medical law

Give me a call: 0261 - 404 99 46
E-Mail:

1. treatment requirement

• indication and
• patient consent
  • The consent is only valid if the patient is capable of consent and has been informed before the examination and treatment.

2. Purpose of living will

•  Provision for the event that, for health reasons, consent to a proposed medical procedure can neither be given nor refused.

3. What happens if there is no effective living will?

•  Emergency treatment: Presumed will
  •  Decision in favor of life
• No emergency treatment:
  • awaiting the appointment of a representative (authorized agent or custodian)
• Representative: Presumed will
  • Specific written and oral statements
  • ethical and religious convictions
  • patient's values

4. What is a living will?

• "Now-for-later-decisions" of a legally competent person who is of legal age regarding
  • examinations and therapeutic treatments
  • medical interventions
• The medical measures must not be imminent.
• Target audience:
  • physicians and nursing staff,
  • representatives of the patient,
  • guardianship court

5. Certainty of the declaration
"If I…, then…."

• Exact description of the situation in which the living will is to apply.
  • Example: If, in the opinion of two experienced medical specialists, I am in all likelihood in the final stages of an incurable, fatal illness, even if the dying process has not yet begun, (…)
  • If I suffer from the most severe permanent (how long?) brain damage that is likely to permanently exclude my ability to reason, make decisions, and communicate, (…)
• Clear instructions.
  • ! Not enough:
    [...] then I would wish to "die with dignity", "die peacefully", "have no life-prolonging measures"
  • ! Right:
      Then, in the situation described, I wish that hunger and thirst would only be satisfied in a natural way. I do not wish to be artificially nourished, regardless of the form of the supply (e.g. via gastric tube, vein)

6. Limits of living wills

• Medical indication
• Legal regulations!
  • ! Not allowed: request for active euthanasia
    • Request for a lethal injection
  • ! Permissible request for indirect euthanasia
    •  Request for pain management, the unavoidable unintended side effect of which is a shortening of life (e.g. morphine in the terminal stage of cancer)
  • ! Permissible wish for passive euthanasia
    •  The renunciation of life-prolonging measures
      e.g. artificial nutrition, artificial respiration

7. Questions you have to ask yourself

• What personal values, ethical or religious beliefs do I have?
• Have I described them in a way that is easy for third parties who don't know me to understand?
• What do I not want for myself under any circumstances?
• Have I made my wishes clear?
• ! If forms are used, don't just check boxes; this raises doubts about your seriousness. Sample forms must have been published after September 2009

8. Formal requirements

• In writing (handwritten or printed)
• Signed by a consenting adult
  ! Only the signature must be handwritten
• . Place and date are not required
  ! But recommended
• Notarization is not recommended
•  Update not required
  ! But recommended
• The effectiveness does not depend on prior medical consultation.
  ! But recommended

9. Is a living will binding?

Yes, if:

• there is substantive agreement between the consent/prohibition and the specific medical measure, and
• It applies to the current life/treatment situation.
  A legal guardian or health care proxy will review whether the provisions apply to the current living and treatment situation.

10. Checklist for living wills

• Designation as a "living will"
• Who is the author, exact personal data
•  Information about the place and date
• ; statement of personal circumstances and values
• A clear description of the situation in which the directive should apply
• Clear information about which medical measures are desired and which are not
•  Note on powers of attorney

11. Can a living will be revoked?

• As long as the author is capable of making decisions, it can be revoked at any time.
• The revocation does not need to be in writing! Verbally or by behavior that indicates the revocation is sufficient
  - e.g. tearing up the document, crossing out answers on a test
• ! As long as there are no indications of a revocation, the order continues to apply

12. Recommendations for retrievability

• Keep the original at home,
  At least one copy with a trusted person who can be reached quickly
• Inform people about the living will
  and where it can be found
• Note in your wallet
  - Name the people who have access, with phone numbers.
• A note can only be stored in the Central Register of Lasting Powers of Attorney of the Federal Chamber of Notaries (www.vorsorgeregister.de) if it is accompanied by a power of attorney or a care order.

13. Is a power of attorney useful?

• No one – not even your closest relatives – is allowed to manage your affairs if you are no longer capable of acting and giving consent
• With a power of attorney, you decide for yourself who should represent you in personal and financial matters and in what

14th alternative: guardianship

• If a person of legal age is no longer able to manage their own affairs and has not issued a power of attorney, the court appoints a guardian
• . The court defines the scope of the tasks of the guardian
  - asset care, health care, determination of residence, decision on measures similar to placement, receipt and opening of mail, etc.
• Within the scope of these tasks, the guardian is the legal representative of the person under guardianship.

15. Differences

• The power of attorney takes effect immediately
  - It takes time for a decision on guardianship to be made
• authorized representatives cannot/do not have power of representation
  - The carer is obliged to provide care
• The power of attorney can be revoked at any time
  - It is difficult to change the guardian
• Authorized representatives are generally not subject to judicial control
  The supervisor is obliged to report regularly to the court.

16. Special case: deprivation of liberty

• Measures involving deprivation of liberty (bedrails, sedatives, etc.)
  during a stay in hospital, a home or "other institution" and
•  deprivation of liberty
• ! Always require court approval
• This applies equally to the guardian and the authorized representative.

17. Tips for a power of attorney

•  Issue a written power of attorney
• Specify the scope of the power of attorney precisely
• Individual power of attorney
  - in conjunction with the right to delegate authority
• In addition, bank and postal authorization with the local forms
• ! Notarization required in exceptional cases, e.g. for real estate transactions
•  Clause:
  - "Authorized representative must present original power of attorney"
• Keep original power of attorney in a safe place
• ! The power of attorney is effective until revoked

18. What is a living will?
Is it useful?

• Provisional regulation in the event of a court-ordered guardianship
  Informing the court about the desired
  • person of the carer or who should not be appointed as a carer under any circumstances
  • Which tasks should the guardian have and which should they not have
  • Wishes regarding the personal way of life during the care
    e.g. no placement in a home X

19. Recommendation

• Write a living will,
  power of attorney and
  care order
• Keep them at home with your personal documents
• Make doctors and relatives aware of this
• Give a copy to trusted persons
• Keep a note, e.g. in your wallet or purse, or have one recorded in the Central Register of Lasting Powers of Attorney of the Federal Chamber of Notaries.

20. Recommendation to relatives, authorized representatives and custodians

• </5><5>Make sure that a written, effective living will, power of attorney or care order exists, and know where it is stored.</5>
• ! If you learn that a guardianship procedure is being initiated:
  • submit the documents to the guardianship court immediately
  • Even if you are not appointed as a legal guardian, always keep records!
    (income/expenditure/intended purpose)

The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.