You know about Wills, what about a Living Will? By Vanessa Lovell It was a decision she never wanted to have to make again. Her husband had suffered a severe stroke and lay dying in a vegetative state, unable to communicate. The doctors told her that he was developing life-threatening pneumonia and asked what she wanted done. She could request antibiotics or let nature run its course. If her husband recovered from the pneumonia, he would require institutionalised care for the rest of his life. This is a scenario that occurs daily throughout the world. Family members are unable to make decisions without feeling profound remorse and the medical profession tries to balance their commitment to save lives with their dedication to the goal of relieving suffering. For many people, the fear of a lingering death is worse than the fear of dying itself. If you share these fears and are over 21 years old, you should consider having what is known as a Living Will or Health Care Directive. Such a document is intended to anticipate the situation when you might be in an incurable or an irreversible mental or physical condition, with no reasonable expectation of recovery. It allows you, as a competent adult, to state your wishes regarding your future health care, and appoint people to carry out your wishes if you are too ill to make the decisions yourself. You may, for example, direct the withholding of life prolonging procedures such as life support systems. If you have definite preferences as to medical treatment under certain circumstances, you may wish to spell these out in the document, too. Remember, however, that medical technology develops quickly and you may find it better only to prohibit specific medical procedures after discussions with your doctor. It is more common to see general rather than specific directions laid out in a Living Will. What is most important is the corroboration of written and oral evidence which helps ensure that your wishes and values will be respected. You may designate a person as your next of kin to make treatment decisions on your behalf in case the specifics of a particular situation are not covered in your Living Will, or in the event that advances in health care technology present new forms of treatment. Hospitals and doctors will look to this person (usually a family member or close friend) to make decisions on your behalf. A designation clause can be included in your Living Will so that all your wishes are expressed in one document. Living Wills are not legislated for in Bermuda, as is also the case in the United Kingdom. However, in the event of a dispute, their existence can provide evidence as to a patient’s consent or non-consent to medical treatment and is likely to be the deciding factor in any case. The Court, in considering health care decisions, would follow common law principles that have long recognised that a competent adult has the right to determine what will be done to the person or body, including the right to accept or decline medical treatment. In the USA and Canada, on the other hand, legislation has been enacted to recognise Living Wills, although each state in the USA has its own rules and standards. There are no formalities for the execution of Living Wills in Bermuda, and no medical certificate is required. Therefore to prevent a challenge to its validity, it is useful to follow the way a Will is executed. A Living Will should preferably be executed before two independent witnesses who also confirm the competence of the person signing, and who are not beneficiaries of the person's Will or the persons named to make decisions on his or her behalf. Alternatively, as many residents of Bermuda travel abroad for medical treatment, it is common for Living Wills to be signed before a Notary Public. If you travel abroad for medical treatment, it is important to ensure that a new Living Will is signed which complies with the laws of the state or country in which treatment is being sought. The form for the Living Will will usually be available through doctors or hospitals. Discussion of these issues before you get sick relieves stress for your family, should the day ever arrive that they must resort to a Living Will for direction. You should also periodically update your Living Will as circumstances change. Copies of your current Living Will should be supplied to key family members, as well as to your doctor, attorney and the hospital. You should also carry a wallet card giving information about the existence and location of your Living Will. A Living Will spares family members the anguish of having to make difficult decisions and it helps them to discuss situations in advance and come to terms with a loved one’s wishes. Many people wish for quality of life rather than mere quantity of life and above all, the opportunity to depart this world and die a natural death. Attorney Vanessa Lovell is a member of the Trusts and Financial Structures Team of Appleby Spurling & Kempe. This column should not be used as a substitute for professional legal advice. Before proceeding with any matters discussed here, persons are advised to consult with a lawyer.
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