Any person who is capable of judgement may draw up a living will. Healthcare professionals are obliged to observe living wills. How is a living will formulated? What happens if no living will exists?
The practical situation
Any person who is capable of judgement may draw up a living will. Unlike powers of attorney, living wills only apply to medical matters. They can stipulate the medical interventions to which people consent or which they reject if they are no longer able to give consent. They can also designate a therapeutic representative – someone who decides on the type of treatment or care to be provided in such situations. If someone is no longer able to give consent, healthcare professionals must first establish whether a living will exists or a therapeutic representative has been designated.
The patient’s will must be respected
Healthcare professionals are obliged to respect the will of the patient – although this can only be done if the patient’s will is known, of course. It is therefore advisable to take steps to ensure that the people concerned know what needs to be done when the time comes. For example, patients can give a copy of their living will to their therapeutic representative, to the healthcare professional treating them, to the care home (when they move in) or to their relatives.
Clarity in an emergency
In an emergency, healthcare professionals can act before they know whether the patient has a living will. In such cases they will take account of what the patient was assumed to want. If a decision taken by the therapeutic representative puts the patient at risk and the healthcare professional does not agree with it, the professional can consult the cantonal Child and Adult Protection Authority. The living will or power of attorney can by modified or cancelled at any time.
How is a living will formulated?
A living will must be set out in writing, dated and signed. Other than that, you can choose whatever content and form you like. You can write your will by hand or on a computer, or you can fill in a ready-made form. You don’t need witnesses, but it’s a good idea to talk to your doctor; he or she will be able to advise you on how to formulate your living will. You can also obtain specimen forms from numerous organisations and use them as the basis of your living will (Pro Senectute, FMH etc.) You can modify or revoke your living will at any time. In addition, you should review your living will at regular intervals (every three or four years, for example) to see whether it still reflects your wishes, and you should modify it if necessary. If you have not written a living will, or do not want to, you can of course give your instructions orally, for example immediately before you undergo surgery.
How is a power of attorney formulated?
A power of attorney covers more areas than a living will. People able to act for themselves (i.e adults capable of judgement) can use a power of attorney to authorise a natural or legal person to assist them if they become unable to give consent, to manage their assets or represent them in legal matters involving third parties. You can also designate a therapeutic representative as part of a power of attorney; in this case, the extremely personal nature of the task means that the representative must be a natural person. The power of attorney must be written by hand from start to finish or certified by a notary public.
Does the therapeutic representative have to be a healthcare professional?
No, you can designate someone from your family or a friend or acquaintance who knows you well and whom you trust to represent you.
The therapeutic representative must agree to the treatment proposed for you. This means that the healthcare professional must give the representative all the information they need to agree to the treatment on your behalf. The therapeutic representative exercises their rights once you are no longer able to give consent yourself.
What happens if I have not written a living will or designated a therapeutic representative and am unable to give consent myself?
In this case, the healthcare professional must obtain the consent of your legal representative before the intervention can take place. If you have no legal representative, your relatives can give consent on your behalf. If you have no relatives, or if they do not want to take medical decisions on your behalf, the competent authority will appoint a counsel.
Last modification 17.08.2018