BGH: living will: rejection of life-extending measures is not enough

BGH: living will: rejection of life-extending measures is not enough

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BGH: Rejection of "life-extending measures" is not enough

A living will is for all involved (e.g. caregivers, authorized representatives, doctors, nursing staff,
Courts) binding, insofar as it clearly expresses your will for a specific treatment situation. In cases of doubt, a court decides as a neutral body. However, the rejection of “life-extending measures” is not enough to end an artificial diet. An advance directive must rather refer to specific measures or specific diseases, as the Federal Court of Justice (BGH) in Karlsruhe decided in a decision published on Tuesday, August 9, 2016 (file number: XII ZB 61/16). A proxy authorization must then clearly state whether it also relates to measures such as artificial nutrition or ventilation.

This leaves it open for the time being whether a 75-year-old woman from Baden-Württemberg should continue to be artificially fed. When she was 70 she had a stroke. Since then she has been fed on a gastric tube. She later suffered severe epileptic seizures so that she can no longer express herself.

In the past, the woman had spoken out against "life-extending measures" in two advance directives if severe permanent brain damage remained. In addition, she had given one of her three daughters a “general power of attorney”, which also includes health matters. After that, the daughter can also decide to terminate life-prolonging measures.

So far, however, the daughter has not ordered a termination of the artificial diet. She and also the general practitioner of the 75-year-old believe that this does not correspond to their will. This is exactly what the other two daughters mean.

This had been followed by the Mosbach district court. It appointed one of the two as a "health care supervisor". If this becomes legally binding, this could order the end of artificial nutrition.

With its decision of July 6, 2016, which has now been published in writing, the BGH has now overturned the decision of the regional court and referred the dispute back there for review. The living will was not clear enough, and the will of the 75-year-old was not clear, the Karlsruhe judges explained as justification.

In a living will, general wording such as the wish for a “dignified death” or the rejection of “life-extending measures” are not concrete enough. Because it is unclear whether this should only refer to medical treatment or measures such as artificial nutrition or artificial ventilation. The living will must therefore go into certain measures or certain clinical pictures. Otherwise, it could not have a binding effect.

Similarly, a power of attorney must also make it clear whether the authorized person may only decide on immediate medical treatment or on life-supporting measures such as artificial nutrition or artificial ventilation and whether this should be binding for the doctors.

This is fulfilled here. Therefore, the power of attorney is valid for one of the three daughters. It can only be restricted if this daughter demonstrably defies the mother's will. So far, the district court in Mosbach has not sufficiently demonstrated that this is the case because stopping the artificial diet would be in line with the will of the 75-year-old. The district court should therefore now check whether the woman has previously made oral statements that indicate her will. mwo / fle

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