Advance Decisions

Last update: December 2011
Contact: Lisa Tambornino

Authors

I. Introduction

Modern medical science now permits successful treatment of many diseases and injuries which in the past would certainly have caused the death of the patient concerned. On the one hand, this has given hope and new opportunities to many people, but on the other hand it can bring about previously unknown states of dependency.

In principle, every person must decide for himself or herself whether medical measures are to be implemented or, as the case may be, continued. However, situations can arise through accident, serious illness or the loss of cognitive abilities with age in which a person is no longer able to give expression to his or her own will. In such cases it devolves upon medical staff and next-of-kin to determine the presumed will of the patient. In such cases a declaration in the form of an advance decision can be of help.

An advance decision (also called living will or health care directive; ´Patientenverfügung` in German)  is generally understood to represent a statement of the will of a person made while that person is in a position to take decisions and for the purpose of providing for a situation in which he or she is no longer able either to give consent to medical measures, nor to refuse them. An advance decision may refer to the refrainment from or the limitation of certain medical interventions, as well as to their implementation. 

The purpose of an advance decision is to uphold the right to self-determination (see module Self-determination) of a patient when he or she loses the capacity to give his or her consent. It is addressed towards the attending physician and/or a legal representative.

In Germany, the first form for making an advance decision declaration (see module Forms for advance decisions) was issued in 1978. In the ensuing years, comparable forms were drafted by a variety of organisations (self-help groups, senior citizens’ associations, hospice organisations, pharmaceutical companies, churches etc.). Although advance decisions have been gaining more and more acceptance since the end of the nineteen-nineties, only as late as September 2009 did a law (see module Third act amending German guardianship legislation) defining their legal status come into force.

Advance decisions must be differentiated from powers of attorney (‘Vorsorgevollmacht’) and directives in respect of guardianship (‘Betreuungsverfügung’) (see module Power of attorney and guardianship directive). The conferral of power of attorney to a trusted person provides that person with the authority to make decisions in respect of medical intervention and other personal matters. Even close relatives (e.g. spouses or children) require such authority in order to be able to make decisions for a patient in his or her stead. Putting directives in respect of guardianship into writing provides a way of making concrete recommendations as to who should be appointed guardian and provide care and how this should be managed in case guardianship is deemed necessary by a guardianship court (‘Vormundschaftsgericht’).

Next: II. Legal Regulations