The Legal Characteristics of the Patient’s «Living Will»: Doctrine and Jurisprudence

Abstract

The advance of medical technologies since the mid-20th century has enabled to prolong a patient’s life in critical situations, though not all patients would tolerate to undergo such treatment. Therefore, the legal question encompass- ing the problem was to resolve the issue of a patient’s refusal of life-sustaining treatment. Since most of such patients are usually irresponsive and lack legal capacity, a solution featuring a legal document akin to a testament or trust has been proposed in the early 70s. Upon the gist of this document, a patient having full legal capacity would anticipate his/her further incapacitation and command to conduct or refuse medical treatment. His/her will, which is reflected in a «living will» has to be notarized, and upon the jurisprudence of various countries worldwide, though not omnipresently, affirmed by a court in order to avoid fraud and satisfaction of the illegitimate interests of third parties. Despite being introduced in the 1970s, living wills are still seldomly drafted by patients. In such case, when the patient lacking a living will falls incapaci- tated, his/her legal representatives and/or the healthcare institution commence civil proceedings so as to define the future fate of the patient using the concept of a substituted judgment, constructed by the courts upon the evidence of the past beliefs and habits of the said person, which requires extensive witness testimony. Resolving the presumed will of the patient is a very complicated issue, and in terms of lack of evidence, courts are not likely to authorize ter- minating the patient’s treatment, acting with a «negative» presumption to rule so. However, courts still may rule that futile treatment is not of the best interests of the patient (which is frequent in respect with minor patients who were born with major congenital ailments). Therefore, a living will, if legitimately drafted, is considered as a firm evidence of the will of the incapacitated person to continue, or to terminate treatment. The «living will» is an entirely voluntary-drafted document and is void upon the fact of undue influence, like an ordinary testament. The intro- duction of such document into the national legislation requires adopting vari- ous legislative acts, and such document is not legally valid unless provided by appropriate legislation. A living will reflects the will of the patient, not his/her legal representatives, and may not be drafted by them. In rare exemptions, the patient, unable of writing, may dictate the will’s content to a duly authorized person (e.g., a guardianship judge, like in Italy). Thus, the approval of the living will execution is the compliance with the will of the patient concerned: his/her guardian expresses his/her will, and the court affirms it. The control- ling function of the courts is hereby apparent. All in all, the «living will» is a considerable institute of private law, enacted in various countries worldwide and has its legal prospects in Ukraine, as well.