11/3/2020
It is undeniable that the pandemic has brought to light several concerns and fears about people’s health and longevity, since COVID-19, still without an effective treatment, may represent, for many, a serious and irreversible disease.
Given this scenario, people have expressed more and more interest in the execution of “living wills” to ensure that their wishes, especially regarding the medical treatment of this disease, are observed if they can no longer express their will.
Although this type of document is not yet regulated by a law, the Federal Council of Medicine published Resolution No. 1,995/12 (“Resolution”), which defines the person anticipated instructions as the “set of wishes that specifies the type of medical treatment that an individual does or does not want to undergo in the event he/she becomes uncapable of communicating his/her wishes”.
Thus, based on this Resolution, the anticipated instructions, also known as “living will”, allow any person to express in writing his/her will/preference such as the choice of less invasive methods and palliative care, in the event of a bad health condition that turns out to be irreversible; the treatment at home or in the hospital; the medicines that one would like to avoid; and even to appoint a representative to make such decisions on one’s behalf.
The living will must be informed to the family doctor, who will write down the patient’s orientations in his/her medical chart, which will prevail over the opinion of any of the family members. However, as provided in the Resolution, doctors may fail to comply with the living will if such wishes expressed by the patient are “in disagreement with” the provisions of the Code of Medical Ethics.
In any case, to avoid potential challenges in relation to the capacity of its principal and of its content, we recommend that this document be drawn up before the Notary Public, under legal supervision and orientation.
Coauthors: Maria Paula Meirelles Thomaz de Aquino e Marcelo Trussardi Paolini
