Living will

Death is an immutable and inevitable biological fact, because sooner or later, all people, as living beings, die. This reality, which makes people's lives ephemeral and fleeting, makes all of us, to a greater or lesser extent, reflect on the time of our death.

These reflections of all persons can be projected in the patrimonial sphere, a reflection of which are born legal institutions to which we have already paid attention, such as the will, the declaration of intestate heirs or the acceptance of inheritance.

However, it is no less true that the death of people is also projected in a very intense way on the personal sphere of all of us, generating reflections on, for example, what will or should be the fate of our body once we are dead, or how we should approach the last moments of our life in the case of being afflicted by serious and incurable diseases that generate great pain and suffering and even invalidate our natural ability to understand and want to make the most appropriate medical decisions to practice on our person within the scope of the autonomy of the patient's will.

The need to manage these human concerns described above and give them a legal channel for their expression has made it possible for the state legislator, and in Spain, especially the various autonomous legislators, to develop instruments that channel these needs of many people, creating instruments that allow anyone, in advance, to expressly and unequivocally express the way in which they wish to conclude the life cycle and the fate of our deceased body, all through the so-called living wills or advance directives documents.

Thus, by means of this document, any person can make sure that at the time of his death or in case he suffers a serious and incurable disease that prevents him from making decisions for himself, the treatments, care and final destination of his body will be the ones he really wants, which is extremely positive, since nobody knows better than oneself what his wishes are in this regard, by granting this kind of document we can ensure that our wishes and desires will be scrupulously fulfilled, also avoiding to transfer the weight and responsibility of these decisions to loved ones, getting that all these decisions can be taken at the time in a much more natural, accepted, and generating less pain and uncertainty in our person and in that of our loved ones.

As we have just anticipated in the first question referring to this institution, by means of a living will or a deed of advance directives, any person who has the capacity to do so will be able to determine, mainly, both the destiny of his body once he has died, as well as, above all, the way in which the health care of his person should be managed in the event of suffering a serious and incurable illness.

Thus, by means of the living will or the writing of advance directives, it will be possible, for example, with regard to the destiny of our body once we have passed away:

1. Determine the destination of one's own body once deceased, being able to determine, for example, whether one wishes to be buried or cremated.
2. To provide that our body be donated to science for scientific research purposes that will advance our knowledge of human beings and the diseases that afflict them, as well as for the field of teaching in the university field, such as in schools of medicine and other medical sciences.
3. To fix the place where we wish our body to be buried or where our ashes are to be deposited or poured.
4. To authorize or not the donation of our organs for transplant purposes to other persons, in the event that our death occurs in a way that makes this possible.
   

With regard to the medical-health care you wish to receive in the event of suffering a serious and incurable illness, for example, it may be established:

1. In the event that this disease annuls the patient's natural capacity to understand and want, so that he/she cannot make decisions concerning him/her by him/herself, a representative of the patient may be appointed before the health professionals, who will be in charge of making the appropriate decisions at all times, deciding on the medical or palliative treatments that should or should not be applied, all this of course at the proposal and under the tutelage and advice of the corresponding medical team. 
2. Appoint a substitute for the representative, in the event that he/she is unable to perform the functions entrusted to him/her, so that he/she will be the one to make the decisions that are processed on the basis of the wills set forth in the document granted.
3. To assess the diseases for which, in the case of suffering from them, the provisions of the document apply, for example by providing that the provisions set forth in the living will apply in the case of suffering from advanced dementia (such as Alzheimer's or senile dementia), severe brain damage (such as an irreversible coma or a persistent vegetative state), advanced neuromuscular degenerative diseases (such as multiple sclerosis or amyotrophic lateral sclerosis), any kind of advanced cancer or any other disease whose effects are comparable to those resulting from these ailments, diseases or clinical pictures.
4. Determine whether or not life-prolonging medical treatments are desired when the patient's condition is already irreversible (such as chemotherapy or radiotherapy treatments in the case of cancerous diseases).
5. To decide whether or not to receive certain specific medical treatments in the last days of life, such as life support techniques (mechanical ventilation, cardiopulmonary resuscitation or artificial feeding), or experimental treatments or drugs whose efficacy has not yet been adequately proven.
6. To determine whether or not we wish to be given drugs to mitigate the physical and psychological pain that may be generated in the person in the last stages of the serious and incurable disease.
7. Establish the place where you wish to receive the last medical care, for example, by determining that you wish to remain in your usual home during the last days of the patient's life prior to his or her death.
   

From the analysis of the state and autonomous community regulations applicable to the matter, it should be noted that there are three main requirements to be able to grant this type of documents, namely:

• First of all, the person must be of legal age, which, as is well known, in accordance with article 315 of the Civil Code, is reached at the age of 18.
• Secondly, it must be a person with sufficient capacity, that is to say, with full natural capacity to understand and want the acts that he/she performs, and also without presenting any kind of modification of capacity (such as incapacitated persons under guardianship or curatorship).
• Finally, the applicable regulations require that it be a free grant by the person in question, that is to say, that it be made completely voluntarily, without any kind of violence or intimidation in the act or in its content.
  

In the area of the autonomous community of Catalonia, which is of more interest on this occasion given the location of this notarial office, it is necessary to indicate that, in accordance with the regulations governing the matter (which can be consulted in "STEP 4"), the advance directives document is a document addressed to the responsible physician in which a person of legal age, with sufficient capacity and freely expresses the instructions to be taken into account when in a situation in which the circumstances do not allow him/her to personally express his/her will. 

In this document, the person may also designate a representative, who is the valid and necessary interlocutor with the physician or healthcare team, to substitute him/her in the event that he/she is unable to express his/her will by him/herself.

Likewise, the Catalan legislation requires reliable proof that the aforementioned document has been granted under the circumstances described above, and therefore requires that the formalization of the document can be carried out by any of the following means:

• Or before a Notary Public, in which case the presence of witnesses will not be necessary.
• Or before three witnesses of legal age and with full capacity to act, at least two of whom must not be related to the grantor up to the second degree of kinship or be linked by a patrimonial relationship with the grantor.
  

Likewise, the aforementioned regulation establishes as final issues that:

• Advance directives that incorporate provisions contrary to the legal system or to good clinical practice, or that do not correspond exactly to the factual situation that the subject had foreseen at the time of issuing them, cannot be taken into account. In these cases, the relevant reasoned annotation must be made in the patient's medical record.
• If there are advance directives, the person who has granted them, their relatives or their representative must deliver the document containing them to the healthcare center where the person is being treated, and it should also be noted that the document in question should be included in the patient's medical record.
  

This is perfectly possible, since any person, with the passage of time and the accumulation of life experiences, can have his or her preferences, wishes and needs modified as to how he or she wishes to be treated in his or her last moments, or in relation to the fate of his or her body.

To modify or revoke the advance directives document, it is simply necessary to grant a subsequent one with the new provisions, which will revoke the contents of the previous one. Logically, it will be necessary to register it in order to record this change and, if necessary, to apply the last stipulations established in this regard (see Article 7 of the Catalan Decree on the matter). However, it could also be revoked verbally on the spot, if when the time comes, the named interlocutor is informed that he has changed his mind.