Who Decides, When You No Longer Can?
By Yolanda Bokhorst
Being in control – also during the last stages of your life – is something that more and more people are looking into. This has resulted in a huge increase in the number of living wills over the past years.
A living will is drawn up with the help of a civil law notary. In it, you determine who will be in charge of your financial, personal and medical affairs once you are no longer able to take care of them yourself. Once this has been arranged, we find that our clients – and those directly involved – feel they can relax again.
It goes without saying that it is very important to think long and hard about whom you are going to appoint for the purpose of taking care of your – often very personal – matters. As you yourself might no longer be able to verify that this is done in accordance with your wishes, you need to be able to trust that your agent(s) will not abuse their position. This is why some people appoint two.
As an extra measure, you can appoint a supervisor to ensure that your agent sticks to the agreed plan.
HONORING YOUR WISHES
'By talking to your doctor and those around you, and putting things in writing, you make sure your wishes are known'
And what about your medical affairs? For instance; which treatments do, or don’t, you want? Under what circumstances do you want treatment to stop – or continue? What are your thoughts on euthanasia? In the Netherlands, there has been a long-going discussion, quite nuanced, regarding the degree to which the thoughts of the patients should be deciding in this type of situation. This has resulted in legislation that, on the one hand, emphasizes the duty of the doctor to exercise due care and, on the other hand, makes it possible to respect the wishes and convictions of the patient.
Openness Is Crucial
Precisely because of the due care that the doctor is expected to exercise, it is crucial that they know what your ideas and convictions regarding these matters are. This means that the first thing you should do is discuss them with your doctor. The doctor will have to keep a record of this conversation in your medical file. Furthermore, it is advisable to put your wishes and possible requests to your doctor in writing in order to ensure that this document, signed by you, ends up in your medical file as well.
Besides sharing your wishes with your doctor, you should of course also discuss them with those close to you. This way, all involved will know how you feel about these matters, so that they – when the times comes – can make the right decision.
And, once you have done all of this – discussed everything and written it down – are you done?
No, you will have to regularly confirm with your doctor that you still feel the same way about what you discussed and put in writing. This way, the doctor will know that what you once said was not a one-time idea, but something that you have consistently adhered to over time. Or – should this no longer be the case – you should make sure that the necessary changes are made.
'Only if the doctor can carry out your wishes while not violating medical, professional and ethical codes will they be able to honor your wishes'
The Doctor Decides
Though talking to your doctor and those around you, and putting things in writing, ensures that your wishes are known – even if, at some point in time, you are no longer be able to express them yourself – this does not mean that the doctor will simply do what you have requested. Aside from their obligation to exercise due care, they also have medical, professional and ethical codes to adhere to. Only if the doctor can carry out your wishes without violating these codes will they be able to honor your wishes.
Role of the Agent
Your medical statements and wishes need to be included in your medical file. Therefore, we usually do not include them in a living will. However, should you have made such statements, you can use your living will to make this known to your agent. You can also add the explicit request for the agent(s) to inform your doctors of these statements and to make sure that your wishes are respected as much as possible.
Property Owned Abroad
Experience shows that many expats who live in the Netherlands own property abroad. In your living will, you can include a power of attorney for your agent, specifically targeted to your property abroad. This will allow them to act on your behalf abroad, if you are not able to. You must first, of course, verify that this power of attorney meets the legal demands imposed on it in the country in question.
For more information on how to draw up a living will, you are recommended to contact a specialized civil law notary.
2514 AB The Hague
070 356 68 00
Civil law notaries in international family law, corporate law and real estate law
- wills and guardianship
- marital and cohabitation contracts
- estate planning
- winding up estates
- corporate law matters
- property transfer and mortgage