By Kerstin Glomb
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 expressed.
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 person's wishes.
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 situation.
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.