Some time ago I attended a round table organised by the association “Derecho a Morir Dignamente” (Right to Die with Dignity) which was attended by members of political parties, who were urged to express their position on the aspects that constitute the ideology of the association in view of the upcoming elections.
There was also a “zero row”, in which professionals from different fields were present, to give their views on the matter, to which I was invited as a Notary.
Regardless of the substance of the issue being debated, which was the convenience and/or legal viability of euthanasia, within the concept of the right to a dignified death, the day often turned to the advance directives document (ADD), also known as a living will, pointing out as a defect of the system the little dissemination of this document.
I am going to dedicate these lines to trying to fill this gap, which, in order to be practical, will lose some legal rigor. In order to facilitate further investigation into the issue of who might be interested, the regulatory framework for advance directives documents is constituted by Law 41/2002, of November 14, the basic regulation of patient autonomy and rights and obligations in matters of information and clinical documentation; and by the corresponding regional regulations.
In the case of the Community of Madrid, this regulation is the Law 3/2005 of May 23, regulating the exercise of the right to formulate advance directives in the health field and creating the corresponding registry; Decree 101/2006, of November 28, which regulates the Registry of Advance Instructions of the Community of Madrid and establishes the official models of the documents for requesting registration of Advance Instructions and their revocation, modification or replacement; as well as by Law 4/2017, of March 9 of rights and guarantees of people in the process of dying.
In the case of the Community of Catalonia, it is Law 21/2000 of Catalonia on the rights to information relating to health, patient autonomy and clinical documentation; the Civil Code of Catalonia, in its article 212.3. and Decree 175/2002, of June 25, which regulates the Registry of advance directives.
WHO CAN GRANT AN ADVANCE DIRECTIVE?
Only people with full capacity to act can do so. That is, people of legal age, and who do not have their capacity judicially modified. Minors, emancipated persons or people with judicially modified capacity cannot do so. It is important to note that the supervening incapacity, after having made a DVA, far from determining its ineffectiveness, gives it compliance.
HOW IS IT DIFFERENT FROM AN ORDINARY WILL?
Regardless of its content, the difference is that to know which is the last ordinary will of a person, it is necessary to request the certificate of last wills, and to obtain it fifteen days must pass since the death, and fifteen days after the death would be too late to comply with the content of the DVA.
WHAT IS THE CONTENT OF THE ADVANCE DIRECTIVE DOCUMENT?
The essential content of the DVA These are the instructions given by the person who grants it., to carry out medical acts and treatments, in the event that she finds herself in a situation in which she cannot decide for herself.
The details of these instructions depend on each person, however there are institutions that draw up forms that can serve as a model and, obviously, advice can also be obtained from Spanish Notaries.
Because instructions may not be accurate enough, it is highly desirable to designate them one or more persons as representatives, who will be, clarifying their content, those who must decide on the performance of those acts and treatments.
In the absence of an express designation, the representative would be, in this order, the spouse or common-law partner, the closest relatives, up to the fourth degree and, within the same degree, the oldest; the person who, without being a spouse or common-law partner, is linked by a similar relationship of affection and lives with the patient; or the person who is in charge of his or her care or assistance..
The designation of who or who should be representatives is at the absolute discretion of the person granting the DVA and the best option will depend on the personal circumstances of each person. Likewise, it will be necessary to assess whether there are several representatives, how they should act, by majority or unanimously.
Furthermore, the DVA is the appropriate means, for the moment in which they are usually asserted, to record provisions regarding the donation of organs or the body, whether it be burial methods or cremation.
CAN I CONSENT TO EUTHANASIA?
Euthanasia is not permitted under Spanish law, in fact, in article 143 of the Criminal Code it is considered a crime. However, a consent clause could be established, in anticipation of the law regulating it in the future.
ARE DOCTORS OBLIGED TO FOLLOW THE DVA'S INSTRUCTIONS?
Yes. Professionals who care for the person who issued an advance directive must respect the instructions expressed, within the limits established by health legislation, just as they will not apply advance instructions whose factual situation does not correspond to what the interested party had foreseen at the time of expressing them.
HOW IS AN ADVANCE DIRECTIVE MADE?
The law of the Community of Madrid provides for the following systems:
1.-In the administrative units and in the patient care services of public and private healthcare and social healthcare institutions and centres.
2.-Before three witnesses of legal age and with full capacity to act, of which two, at least, must not be related up to the second degree nor be linked by marriage or a similar relationship of affection in the manner established by law, employment, property, service or other obligatory link with the grantor.
3.- Likewise, patients, exceptionally and in a context of life-threatening risk, may express their prior instructions in any medium that reliably expresses their free and unequivocal will.
Previously, granting before a Notary was also permitted, an option that in Madrid, unlike what happens in other communities, has disappeared, but it was really the best option due to the complete and exhaustive advice that could be provided, because the Notary is the one who directly communicates the DVA to the corresponding Registry (avoiding the entire procedure that we will see later), because of the guarantee that its lifetime conservation without risk of alterations entails, and because of the possibility of obtaining as many copies as desired, all of them with the same effectiveness.
HOW DO YOU KNOW IF THERE IS AN ADVANCE DIRECTIVE?
Due to the existence of a Registry that depends on each Autonomous Community, which, in turn, must communicate all instructions made to the National Registry of Advance Directives. These advance directive documents are integrated into the patient's medical history.
If it has not been granted before a Notary for registration, the original must be submitted together with the application for registration in accordance with the standardised model application; likewise, a certified copy of the valid national identity document or passport of the grantor and of each of the persons who have acted as witnesses must be attached as complementary documentation.
Although the existence of the DVA can be known through the aforementioned Registry, it is also advisable to provide a copy to the health center or doctor responsible for the care and to the family members.
CAN AN ADVANCE DIRECTIVE BE REVOKED OR MODIFIED?
Yes, but it must be noted that, in the event of revocation or modification, this must be recorded in the Registry and communicated to the same persons.
