WHAT IS IT? A "Declaration of Life"
is sometimes also referred to as a "Living Will" or
"Advance Care Directive". In these documents a person
provides guidance to his or her enduring guardians in relation to
medical treatment, life support issues and availability of the
person's body for transplant or other purposes.
It should be noted that a declaration of life is not legally
binding and the enduring guardian may decide against the wishes
SO WHY PUT A DECLARATION OF LIFE INTO PLACE?
There are conflicting legal opinions on declarations of life and
their importance in an estate plan.
Some consider it sufficient to appoint an enduring guardian. An
enduring guardian is authorised to make decisions concerning a
person's lifestyle (including but not limited to medical
decisions) if the person is no longer able to make these decisions
due to lack of mental capacity. It is held that a person should
trust their guardian's judgment to make the right medical
decisions at the time.
It has also been pointed out that:
The declarant is making a decision for a time in the future
without having all relevant information available at the time. For
example, future changes and developments in technology and
treatment may impact his or her decision;
The wishes expressed in a declaration of life may compromise
the decision of an appointed guardian(s) and could cause undue
confusion rather than provide useful guidance; and
A declaration of life will require regular updating.
Others consider a declaration of life as a valuable tool in
preparing a proper functioning estate plan. We agree.
WHY DO WE AGREE? A Declaration of Life allows a
person to influence the circumstances and decisions regarding
future medical treatment at a time when he or she is otherwise
unable to communicate their wishes.
This is particularly important for a person who does not wish to
be kept alive by artificial means, once he or she has suffered
severe physical and/or mental injury. A declaration of life is
simply a way to exercise a person's personal right in relation
to life support and organ donation issues. In our view there are
hardly any other decisions which are more personal.
In addition, a Declaration of Life provides guidance to enduring
guardians as to the wishes for treatment and the medical and other
circumstances that should be implemented or ceased. It provides the
enduring guardian with comfort and guidance in a highly emotional
situation knowing that their decision is in accordance with the
An example where a Declaration of Life may have assisted family,
enduring guardians and medical practitioners is the US case
concerning Terri Schiavo, who suffered sudden cardiac arrest in
February 1990 and was pronounced to be in a persistent vegetative
state within a year. Michael Schiavo, Terri's husband, was
appointed as her legal guardian in June 1990, which was unopposed
by Terri's family at the time. In May 1998, Michael petitioned
the court to remove Terri's feeding tube, which was opposed by
Terri's parents and 7 years of court proceedings ensued.
Michael stated that Terri would not want to live in her condition
and her parents argued that she still had a level of consciousness
and there was no way of knowing what she would want. Michael's
petition was granted and Terri died in March 2005.
WHAT SHOULD YOU DO? Some people have very
strong opinions when it comes to life support, organ donation and
what should happen and not happen in severe medical situations.
Find out whether the issue of life support and/or organ donation is
important for your clients. If it is, recommend that they put a
Declaration of Life into place. The document can be tailored in a
manner which addresses all issues of concern to your clients.
Just raising the issue with your clients may encourage
awareness, so that family members start discussing and sharing
views with one another.
Be that as it may, whether there is a document in place or the
issue has been discussed between family members, to know a
person's wishes in these situations is an enormous help for
others to make a difficult decision in a highly emotional
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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