Who will take care of you when you are no longer able to do so?

A will only allows you to make arrangements for your death. But what if you lose control during your lifetime?

For situations in which you can no longer manage your own affairs during your lifetime—for example, due to a serious accident or mental decline—you can create a living will. Contrary to what the name suggests, a living will is not a will. It is a separate document in which you appoint one or more people as your proxy to act on your behalf if you are no longer able or willing to do so during your lifetime.

In this post, we explain what a living will is and why it's important to create one. A living will can also include medical wishes, such as a ban on treatment. It's recommended to discuss medical wishes regularly with your GP or treating physician.

What is a living will?

A living will is a document in which you stipulate how your personal, medical, and/or financial interests should be managed if you are no longer able or willing to do so yourself. This could be due to a (temporary) hospitalization, a coma, or a (permanent) illness such as dementia.

The living will is preferably recorded in a notarial deed. This notarial deed provides certainty regarding the identity of the person making the living will. Furthermore, the notary's signature provides certainty regarding the date the living will was made and whether the person who made the living will was "clear of mind" at the time of signing the document. The notary is obligated to verify this. This "clear of mind" is also referred to as "mentally competent." Furthermore, the notary can register the deed in a central register (the central living will register), which makes it clear whether someone has made a living will and which notary holds it.

Why a living will?

A living will allows you to maintain control over your life. You can decide who will act as your trusted representative/proxy, and you can also give them specific instructions and mandates.

If someone is no longer able to manage their own interests and hasn't made a living will, the court often needs to appoint a guardian, mentor, or curator. A guardian, mentor, or curator can then represent that person in important decisions, such as selling a home, making a donation, or making medical decisions.

A guardian can make decisions about assets. A mentor decides on personal interests, such as the care and nursing of the person concerned. If a guardianship and/or mentorship are insufficient, a curator can be appointed. A curator can make decisions about assets as well as personal matters (such as decisions about the care, nursing, or treatment of the person concerned).

The individuals appointed by the court as guardians, mentors, or curators may be people with whom the person concerned has little or no affinity. Furthermore, prior judicial approval is required for certain important actions (if performed by a representative).

Example

Albert has Alzheimer's disease and is therefore legally incapacitated. He has never drawn up a living will. Because Albert is being admitted to a nursing home, his girlfriend and partner, Bertha, with whom Albert lives, wants to sell his house. Albert cannot sell his house himself because he is legally incapacitated. A trustee or guardian will have to be appointed by the court. The court may appoint Bertha as trustee, but is not obligated to do so. The court may also appoint Albert's brother or a professional trustee for certain reasons. Furthermore, the court will have to approve the purchase agreement under which the house is sold. If Bertha subsequently wishes to gift part of the house's equity to herself—for example, to avoid inheritance tax if she inherits from Albert—the court will normally not allow this. The gifts are not in Albert's best interest.

All this judicial 'interference' would not have been necessary if Albert – while still mentally competent – had drawn up a living will in which he had appointed Bertha as his proxy.

Contents of living will (also for entrepreneurs)

A living will contains one or more powers of attorney/orders and instructions to the authorized representative, allowing the representative to independently manage the finances of the person granted the power of attorney/order in the living will. Personal wishes can also be included in a living will. Furthermore, a living will can specify wishes regarding medical treatment and indicate who should be appointed as guardian, administrator, and/or mentor later, should any of these legal protections prove necessary despite the living will.

Of course, it's also important for entrepreneurs to have arrangements in place for the situation where they are no longer able to manage their interests, including those of their business, either temporarily or permanently. A living will can also address this.

In a living will, an entrepreneur can, for example, grant power of attorney for:

1. the day-to-day running of the company;
2. the implementation of existing agreements;
3. performing actions that cannot be postponed, such as paying invoices.

Difference between a will and a living will

A will contains provisions that only take effect after you die. A living will contains provisions that take effect during your lifetime.

Medical wishes

A living will can also include medical wishes (or "medical advance directives"). This could include a treatment ban, treatment request, donor registration, or a euthanasia declaration.

Doctors must comply with patients' treatment restrictions, as the patient's prior consent is required to execute a treatment agreement. Other medical requests (including the "euthanasia declaration" or, more accurately, the "euthanasia request") are merely requests to a doctor. In a living will, you can specify which (medical) treatments you do not wish to undergo and under what conditions.

It is wise to regularly discuss advance directives with the GP/attending physician and with relatives, so that these people are (continued to be) convinced that the wishes recorded in the advance directives have not changed.

In short

Have you properly arranged your affairs in case you unexpectedly lose control of your life due to a (temporary) hospital stay, a coma, or a (permanent) illness like dementia? Who will make (temporary) decisions that cannot be postponed? And if you're an entrepreneur, who would you trust to (temporarily) take over your role and, for example, make payments?

You can arrange this in a living will, in which you determine now who will manage your affairs if you are no longer able to do so. A trusted person can then represent your financial and personal interests. It is recommended to have a living will recorded in a notarial deed.

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This article is taken from 'Met Recht Geregeld' (www.metrechtgeregeld.nl), a product of FBN Juristen.