Living will. What is a living will and how is it made?

In Spain, everyone has the right to choose whether they wish to receive a certain treatment if they suffer from a lethal and irreversible disease that prevents them from expressing themselves. 

They can also decide what will be done with their body once they die. However, this must first be stated in a living will.

What is a living will?

A living will is the name given to an Advance Directive. Specifically, it is a document in which the testator writes down how he/she wants to be cared for if he/she suffers a terminal illness that prevents him/her from expressing him/herself. In this sense, it refers to:

• To receive or not to receive a certain surgical or pharmacological treatment.
• To be connected to assisted breathing apparatus.
• To undergo CPR (cardiopulmonary resuscitation) or other similar actions.

But, in addition, the testator can also indicate what should be done with his or her body once the inevitable death has occurred. For example, if he or she wants to be cremated or buried or if he or she wants to donate his or her organs. In addition, he or she can authorise another person to act as his or her representative in interpreting the instructions set out in the will.

Where is the living will regulated in Spain?

The first time this figure was regulated was in 2002. Specifically, it was done through Law 14/2002, on Patient Autonomy and Rights and Obligations regarding Clinical Information and Documentation.

Subsequently, Royal Decree 124/2007 was responsible for regulating the National Registry of Advance Directives. This is a body of vital importance when it comes to carrying out the procedure, as we shall see below.

Beyond this, each autonomous community has its own specific regulations, which we advise anyone interested in executing this type of will to consult.

Limitations of the living will

The law specifies that this document is subject to certain limitations. In fact, it obliges medical personnel and the family to respect the decisions of the sick or deceased person provided that:

• They are not contrary to good clinical practice.
• They are not contrary to accepted medical practice if the situation is not irreversible.
• They are not contrary to professional medical judgement.

Who is entitled to make a living will?

Anyone who is of legal age, i.e. over 18 years of age. If they have reached the age of 16, they may also do so if they are emancipated and, therefore, are not subject to the parental authority of their parents.

For its part, the validity of this type of will extends from the moment it is granted until the testator's death. However, its content can be modified at any time. To do so, it is only necessary to go through the process explained below.

How to make a living will?

This question is particularly relevant in this case, as each autonomous community has its own regulations in this regard. Therefore, making a living will in Madrid is not subject to the same requirements as in Andalusia or Catalonia, for example.

However, there are a series of steps that are shared by all the regions that make up the Spanish territory.

Where is a living will made?

The first step is always to contact a notary. This is mainly because the notary is the person responsible for certifying the will of the person drafting the document. It fulfils the same role as when it comes to guaranteeing the legality of any other type of will.

Once it has been decided where to make a living will, it is time to find the witnesses. This is the aspect that varies most from one autonomous community to another. As a general rule, three are required. One of them can be any person, even if they share blood ties or affinity with the subject. On the other hand, the other two cannot:

• Be the parents, children, aunts, uncles or nephews of the testator.
• Have any financial relationship with the testator.
• Maintain a relationship with the personnel of the Register of Advance Directives of the Autonomous Community in which the will is made.

Once the testator, the three witnesses and the notary have met, it will be possible to draw up the living will. However, the process is not completed until it is registered in the Register of Advance Directives of the Autonomous Community in question. This body is dependent on the Regional Ministry of Health.

The deposit of the living will can be carried out by the testator himself or by the notary, indifferently.

The importance of having the best advice

We already know how to make a living will. That is to say, what information can be included in it, which professionals and bodies are responsible for its management and what requirements need to be met in order to execute it.

However, our experience tells us that, in order to guarantee its legality and subsequent respect by clinical staff and relatives, it is best to contact lawyers who specialise in inheritance. Only they will be able to offer appropriate advice throughout the process to safeguard the rights of the testator.