During the late 1970’s and 1980’s, the concept of the ‘Living Will’ was developed in Anglo-Saxon countries.  The idea is that a person who may in the future become unable to communicate to manage their own medical condition, or their other affairs, can give written instructions while they are still capable of doing so and appoint a representative to act for them when and if they become incapacitated.

In Spain, the right to express your wishes concerning medical treatment and appoint a representative to represent you only in relation to medical treatment was bestowed in the national law to regulate patients’ rights and obligations concerning medical information and documentation, Art. 11 of Law 41/2002, together with  legislation passed by the autonomous communities, setting out the formalities for the creation and use of a valid ‘Advance Medical Directive.’

In the Valencian Community, where ‘Advance Medical Directives’ are known as ‘Voluntades Anticipadas,’ the local rules are contained in Art. 17 of the Law 1/2003. A Voluntad Anticipada must be in writing and can only be executed by an adult.  It can set out your wishes concerning medical treatment in the future, when you are no longer capable of expressing your wishes yourself.  You can nominate a representative to make decisions concerning medical treatment and any instructions concerning organ donation.  If the Voluntad Anticipada allows organ donation, your relatives cannot prevent the use of those organs.

The Voluntad Anticipada must be respected by all those providing medical treatment. In the event that medical personnel object on grounds of conscience to carrying out the instructions contained in the Voluntad Anticipada, the medical authorities must provide other personnel or resources to ensure that they observe it. However, medical personnel are not obliged to carry out instructions which are either illegal or which do not comply with the terms of the Voluntad Anticipada.

There are two specific methods of creating a Voluntad Anticipada. Either it must be signed in the presence of a Notary, or in the presence of three witnesses. In addition, any other method which is legally valid is permitted. You have the right to amend or cancel the Voluntad Anticipada before it becomes effective but any amendment or cancellation must be done either in writing or by any other method which leaves no room for uncertainty. Your Voluntad Anticipada must be included in your medical file so that all those providing treatment are aware of its contents.

If you have already made a Spanish Will or are about to do so, you may want to consider creating a Voluntad Anticipada so as to ensure that if the worst happens, you will be represented by a trusted person who will act in your best interests and respect your wishes.

For more information, please contact Michael Olmer, Solicitor at Link Point Legal and Business Services on 96 626 0500.

By Michael Olmer Solicitor • Link Point Legal and Business Services
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