Dear clients and Readers,
As a consequence of the Covid-19 tragedy as well as the infamous Euthanasia Act recently implemented in Spain precisely during the pandemic; we have been receiving a lot of enquiries from concerned clients regarding this important matter.
Therefore, please find below an informative report with some useful general information. Bear in mind that this is not intended to be used as a specific legal advice. Consequently, should you be interested in discussing about your particular case in strict confidence, please do not hesitate to contact our Law firm and we’ll be delighted to give you further specific advice and guidance.
LIVING WILL: ORIGIN
The living will is the oldest form of advance directive. Its origin is attributed to an Illinois attorney, Luis Kutner, who relied on existing estate law, whereby an individual can control property matters after death, and he devised this way of expressing wishes for health care when the patient can no longer express himself.
The initiative was highly successful: in 2007, 41 percent of Americans had signed a living will; and since then almost all states have passed laws to support living wills.
In England, for example, they have the Mental Capacity Act of 2005, only to refuse medical treatment in advance in the event that the person lacks mental capacity. To be legally binding, you must specify the treatment that is refused and the circumstances in which it is done, in writing and signed by witnesses. In recent years, the number of English people who have put their wishes in writing has tripled.
In Spain, it is true that there is still a lot of taboo around death, which explains that at the moment only 2% of the population has signed a living will.
However, it is likely that this trend will change as a result of the recent and controversial Organic Law 3/2021, of March 24, regulating euthanasia. by virtue of which, euthanasia has been legally introduced in Spain, as a new individual right, regulating the requirements, procedure and controls to authorize and execute it, both by the person himself and by a healthcare professional.
In fact, considering the important implications of the aforementioned law, it is essential that the population, in general, is fully aware of the benefits of granting an advance a living will.
It is therefore of the outmost importance, that our clients and readers are well informed about what a living will is, and therefore that you understand the advantages to sign one.
Only then, you will be able to plan in advance and make vital decisions about the care, etc you want to receive if, in the worst scenario, your health condition might not allow you to express your wishes during that critical moment.
Living Will in Spain (in Spanish: “DOCUMENTO DE INSTRUCCIONES PREVIAS O DE VOLUNTADES ANTICIPADAS”)
What is it?
A Living will is a document in which a capable person, consciously and freely, manifests in writing the instructions that must be respected in the medical assistance to be received when clinical circumstances occur that prevent them from communicating their wishes personally.
The problem is that, without a Living Will in Spain, the family and doctors will have to guess what a seriously ill person would prefer in terms of treatment, etc which can be influenced by religious beliefs outside the person concerned or worse, that the situation might end up in painful disputes and protracted litigation in court.
TYPES OR MODALITIES OF LIVING WILL
Although it is feasible to write a “private document” before 3 witnesses (two of whom cannot be relatives or have a patrimonial relationship with the testator), this option is not recommended because the registration procedures in Spain are not unified and the differences between regions in Spain are notable. Thus, there are autonomous communities, such as Andalusia, that reject the validity of a private document outright.
Therefore, for reasons of legal certainty, and as to avoid legal problems in the future, it is strongly recommended that the document should be signed before a notary public and to be registered in the registry of advance directives of the corresponding Spanish region.
Once signed, the Notary will send a copy of the Living Will electronically to that registry. Likewise, the document will be incorporated into the electronic medical record of the patient. This guarantees its online consultation from any hospital in Spain, and health personnel will be able to access it when necessary. Moreover, in the case of organ donation, it will serve as a means of saving lives.
INADEQUACY OF THE “CLASSIC” WILL TO MANIFEST THESE PARTICULAR KINDS OF WISHES
Undoubtedly, due to the specific nature of these wishes, the ideal document to sign is the LIVING WILL and not the standard Spanish will. Why?
The main reason is because, in order to know what the last will of a person is, you have to request a certificate of last wishes. The problem is that to obtain it, fifteen days must elapse from the death. Therefore, 15 days after death would be too late to fulfil the will regarding the medical treatment, inhumation or cremation option or the fate of the organs, for example.
LIVING WILL: CONTENT
This document can be granted by a person of legal age, with full capacity, and it can also be revoked or modified.
A. The expression of your personal values, and instructions on the care or medical treatment, which you wish to receive.
For example, the person who signs a Living Will in Spain, manifests his wish that in cases of a serious and incurable disease; chronic and incapacitating condition or any other critical situation; what would be the basic care and appropriate treatments to be administered to alleviate pain and suffering. Also, that any legally available death aid benefit might be (or not) applied to him in any of its forms;- be it euthanasia or “medically assisted suicide,- nor that his death process is abusively and irrationally prolonged”.
B. The desire to be buried or cremated; to receive sacraments or not, masses or religious rites; the text of the inscription that you want to put on the tombstone. There are people who indicate the entire organization of their funeral. Likewise, in the event that the signer has Christian beliefs, it may also include a request for “help in assuming Christianly and humanely his own death, requesting the presence of a priest, and that the pertinent sacraments be administered to me.”
C. Organ donation; On the other hand, the Living Will can also include, among others, a clause regarding the destination of the organs after death.
First of all, it is highly recommended to deliver a copy of the Living Will to the hospital or doctor responsible for your care and also to the family members.
In case of revocation or modification, it must be communicated to the same professional people and family relatives.
Secondly, it is highly advisable that one or more family and/or legal representatives are appointed to act as interlocutors before the responsible medical team; so the instructions of the living will be fulfilled.
Obviously, there must be an immense relationship of trust with the appointed representatives, given their important mission.
Third, due to the huge importance of this document; – we stress the point about the convenience of receiving a complete and confidential advice from a specialized lawyer, like our Firm.
HOW TO CONTACT US FOR FURTHER SPECIFIC ADVICE OR INFORMATION?
If you might wish to discuss about your specific situation, we are a law firm specializing in wills and inheritance matters; so we will be glad to help you draft a homemade Living Will.
Therefore, as a preliminary step, do not hesitate to get in touch with us, either by:
1. Calling us or sending us a WhatsApp now to (0034) 687 88 88 73.
2. You can also use our e-mail form at the top of the sidebar of your screen, or alternatively, you can send us an e-mail to email@example.com or through our contact section
We have online legal consulting services, and our commitment, we’ll respond to your e-mail inquiry in less than 24 hours.
Finally, thank you very much for your attention, and in case you might have any question or doubt at all, please do not hesitate to contact us and we will be glad to clarify immediately.
We look forward to helping you and the benefit of our “know-how”.
Mr Oscar Ricor
“NON-PRACTISING ENGLISH SOLICITOR IN ENGLAND AND WALES”, under the “Solicitors Regulation Authority” (SRA) SRA number 519196 and practicing Spanish Solicitor.