LIVING WILL

Law 25/2012 was published on 16 July 2012 and governs advance directives on healthcare matters, particularly regarding the format of the living will.

The Law provides that an advance healthcare directive is a unilateral document where a person of sound mind and legal age indicates in advance his or her conscious, free and informed intention with regard to the healthcare which he or she wishes or does not wish to receive in the event of any inability to express his or her own personal wishes.

The declarant should express in a clear and unequivocal manner in the living will his or her wish not to receive any artificial life support treatment; not to be subjected to any treatment which is futile, useless or disproportionate given his or her clinical status and in line with good professional practices, namely with regard to basic life support measures and artificial feeding and hydration measures which seek only to postpone the natural death process; to receive the appropriate palliative care and respect for his or her right to general treatment for the suffering caused by serious or late-stage terminal illness, including appropriate symptomatic treatments; not to be submitted to treatments that are still at the experimental stage; and to authorise or reject his or her participation in scientific research programmes or clinical trials.

The advance directive must be formalised by means of a written document, signed in the presence of a duly empowered employee of the National Living Will Register or a notary, which must contain the full name of the declarant, the place, date and time of signature, the clinical situations in which the advance healthcare directive will operate, any options and instructions regarding health care which the declarant wishes or does not wish to receive, and any declarations of renewal, amendment or revocation of the advance directive.

The team that is responsible for providing the healthcare will have to respect the content of the advance directive document, except in emergencies or cases of immediate danger to the life of the patient where accessing the advance directive may imply a delay that will foreseeably increase the risk to the life or health of the declarant.

Healthcare professionals who provide healthcare to the declarant are entitled to be conscientious objectors and must indicate the provisions of the advance healthcare directive to which they object. In this case, the health establishment must afford the means to ensure compliance with the terms of the living will.

The document will be valid for five years from the date of signature and renewable thereafter by means of a declaration of confirmation from the declarant. In the event that any alteration is made to all or part of the content, the validity period will be renewed. The document may be freely revoked in whole or in part by the declarant at any time.

The law also makes provision for the appointment of a healthcare attorney with the power to decide on the healthcare to be received or otherwise when the declarant is incapable of expressing his or her own intention. To this end, it is necessary to have a power of attorney drawn up to confer the necessary powers to represent the declarant in healthcare matters. The power of attorney is freely revocable and may be renounced by the appointed attorney.

Law 25/2012 also sets up the National Living Will Register (RENTEV) at the ministry responsible for health in order to receive, register, organise and keep up-to-date information and documentation about the advance directive document and the healthcare power of attorney for national, foreign and expatriate citizens resident in Portugal,.

The RENTEV register is for declaration purposes only and any advance directive or healthcare power of attorney which has not been registered will be equally effective as long as it has been formalised in accordance with the terms of the law, particularly as regards the clear and unequivocal expression of the declarant’s wishes.

Law 25/2012 will be regulated within 180 days of 16 July 2012 and will come into force on 15 August 2012.

Cláudia Roque de Almeida
ca@acfa.pt