Advance Directives and Living Will in Barcelona

Although in other countries it may be known by another name, advance directives or living wills refer to the same type of legal document. It is also known as the Advance Instructions Document. However, it is more common to talk about living wills in conversations with lawyers, while doctors, nurses and other health professionals refer to it as the advance directives document (ADD).

In this document, the advance declaration of wishes is made in which someone expresses their desires and decisions for the moment when they can no longer communicate with others to express their opinion, to appoint a representative to carry out a series of procedures for which this document is granted, if in the future they lose their faculties.

This document is granted as a legal and recognised instrument that guarantees that the wishes of an individual who plans in advance for future medical care are respected, regardless of the will of relatives or alternatives proposed by medical professionals.

With the advance directives document and legal will, the main aim is to prioritise the patient’s wishes when the time comes for medical treatments or death.

In advance directives or living wills, people can specify matters related to death, such as the medical care they wish to receive at a given time (imagine an accident or an incurable or degenerative illness), refuse or accept treatments in a terminal illness, choose to be treated with life support measures (feeding and hydration), the use of assisted ventilation, cardiopulmonary resuscitation (CPR) or interventions, among others.

One of the most important decisions in advance directives is the exercise of the right to dignified death (known as euthanasia) in the living will. Thus, in the document, one can demand to end life by exercising the right to dignified death without causing suffering (Law 16/2018, of 28 June, on the rights and guarantees of the dignity of the person in the process of end-of-life care).

Furthermore, it not only allows you to decide the care you will undergo, but also what will happen to your body once deceased: whether you wish for burial or cremation and where you want your remains to rest or the place where your ashes will be kept, or to give instructions about the funeral you desire.

Additionally, in the living will before a Notary, the following is determined:

• Whether you wish for your organs to be donated, once deceased, to save the lives of other people or, alternatively, prefer that your mortal remains be used by institutions for scientific research.

• An authorised representative who acts as an interlocutor with the care team and who will make medical decisions at the moment you are unable to do so, responding according to your wishes. This person must be an adult and fully trustworthy. It is not necessary for them to be a relative. In any case, they must comply with the instructions set out in the living will.

Once it has been agreed that advance directives and living wills are the same document, let us proceed to define preventive powers of attorney. This notarial document allows an individual to choose a person to act on their behalf when they are unable to express their will, so that they can make decisions on personal matters, but also on those of a financial nature. Without this document, the procedure to appoint a guardian by a judge would be long and tedious, especially at such a difficult time.

There are two types of preventive powers of attorney distinguished by the type of granting. One is granted immediately and the other is executed once the person is no longer capable. Contact us to process a power of attorney in Barcelona.

The difference with preventive powers of attorney is that they allow the management of all matters of a person who loses capacity; in contrast, advance directives are instructions exclusively related to medical treatments, death, and the disposition of a person's body after death, given by a person to be used if they cannot give them themselves.

The legislation for this type of cases is quite recent. There are three laws that determine the handling of these cases:

• Law 14/2002, of 14 November, Basic Law Regulating Patient Autonomy and Rights and Obligations regarding information and clinical documentation.
• Royal Decree 124/2007 Regulating the National Register of Advance Directives.
• Law 16/2018, of 28 June, on Rights and Guarantees of the Dignity of the Person in the Process of End-of-Life Care.
• Organic Law 3/2021, of 24 March, regulating euthanasia.

The Autonomous Communities include their own regulations.

How to make a living will in Catalonia? In Catalonia, since the enactment of Law 21/2000, of 29 December, advance directives have legal status. Catalonia has the particularity of having a Register of Advance Directives so that healthcare professionals can access and apply the content if necessary in medical emergency situations.

Furthermore, in Catalonia the Law 2/2024, of 6 February, amending Law 21/2000, on the rights to information concerning health and patient autonomy, and clinical documentation is also important.

The living will or advance directives document is drawn up before a Notary to ensure its execution. It is an ideal tool through which advice is provided for its execution according to local and state law. Likewise, it provides authenticity and legal validity to the document, thereby guaranteeing that the legal formalities allowing the right to a dignified death are fulfilled.

However, you may also complete a document before three witnesses and submit it to the healthcare centre where your medical records are held. Register your document in the Health Department Registry so that all doctors can access it.

Below, we will explain step by step the requirements and formalities that this document requires to guarantee the application of its content.

There are three requirements to be able to make a will before a Notary. The first of these is that it can be granted by those who have reached the age of majority.

The second requirement is that they can express themselves freely and have full legal capacity and that they grant the living will and advance directives without being coerced by anyone. The last requirement requires that they are in full use of their mental faculties. This means that the living will and advance directives can be processed as long as decision-making capacity is preserved.

In the case of a living will or advance directives before a Notary, no witness is necessary.

The presentation of the will before a Notary guarantees its execution according to local and state law, thereby complying with Catalan and Spanish law. Among the advantages, we find the guarantee that the legal formalities will be carried out to obtain the right to a dignified death when the time comes.

Make an appointment with your Notaries in Barcelona to process the advance directives document. In drafting the document, you must define all your decisions regarding the aforementioned matters concerning treatments, life support, organ donation, or the resting place of your remains.

Likewise, you must inform your representative that they will be included as such in the living will. You may even appoint a substitute representative in case the primary one is unable to perform the entrusted functions.

This document reflects a person's autonomy and self-determination. Influencing someone in its drafting goes against respect for dignity. Coercion invalidates the document and may have legal implications.

Finally, once the living will is signed, the notary office, through the agreement between the College of Notaries and the Department of Health, will register it in the Catalan Advance Directives Registry, as well as in the State's National Registry of Prior Instructions.

In the event that the circumstances arise for the application of the living will and advance directives, healthcare professionals must consult the Registry when the patient is unable to express themselves.

You must bring the following documents to the notary:

• DNI, NIE, residence card or valid passport of the person granting the living will.
• The GENCAT health card (or the number if not available).
• The details of your representative (DNI, first name, surname, address and telephone number).
• Define everything you wish to stipulate according to your wishes.

The right to euthanasia or dignified death can be exercised in the writing of advance directives or living will signed at a notary. In this case, it involves exercising this right for the future case in which the person establishing it has a serious, incurable illness or a serious, chronic, and disabling condition, under the terms established by Organic Law 3/2021, of 24 March, regulating euthanasia.

To exercise this right, the procedure established by this law must be followed. Medical certificates will be necessary, and a procedure must be initiated that requires prior verification by the Guarantee and Evaluation Commission.

According to Organic Law 3/2021, of 24 March, regulating euthanasia, to exercise this right it is necessary to meet the following requirements:

1. Have Spanish nationality or legal residence in Spain or a certificate of registration that proves a period of stay in Spanish territory exceeding twelve months, be of legal age and be capable and conscious at the time of the request.
2. Have in writing the information available about their medical process, the different alternatives and possible courses of action, including access to comprehensive palliative care included in the common service portfolio and the benefits to which they are entitled in accordance with dependency care regulations.
3. Have made two requests voluntarily and in writing, or by another means that allows proof, and that are not the result of any external pressure, leaving a gap of at least fifteen calendar days between them.
   If the responsible doctor considers that the loss of capacity of the applicant to give informed consent is imminent, they may accept any shorter period they consider appropriate depending on the concurrent clinical circumstances, which must be recorded in the clinical history.
4. Suffer from a serious and incurable illness or a serious, chronic and disabling condition under the terms established in this Law, certified by the responsible doctor.
5. Give informed consent prior to receiving the assistance to die. Such consent will be incorporated into the patient’s clinical history.

The provisions in letters b), c) and e) shall not apply in cases where the responsible doctor certifies that the patient is not in full use of their faculties nor can freely, voluntarily and consciously give their consent to make the requests.