Living will

Table of Contents

This note explains what a living will is and all the things you can arrange in a living will.

In an ordinary will you arrange everything for when you are no longer there. But what if a situation arises in which you temporarily or permanently can no longer make decisions yourself? Is there someone who can do that for you? Have you designated such a person in writing? Are your wishes for such a situation clearly defined and known to those you have designated? And are your loved ones aware of this designation? You can address these issues in a living will. A living will is a document drawn up and recorded by the notary.

The following paragraphs provide a general explanation for making a living will:

1. Living Will
2. Power of attorney
3. Corporate power of attorney
4. Foreign power of attorney
5. Mentorship, guardianship and receivership
6. Medical treatment proxy

We are happy to provide you with further information.

1. Living Will

What is a living will?

A living will is a document in which you set down a number of matters in case something happens during your lifetime that prevents you from acting yourself. For example, if, due to an accident or illness, you are no longer able to arrange important matters - private or business. Or if you no longer want to handle certain matters yourself and would prefer that someone else does this for you. In all these situations it is important to know what your wishes are. A living will is a will that works during life.

How does it differ from an ordinary will?

In an ordinary will, you record what should happen to your estate after your death. In a will you regulate, among other things, to whom you want to leave something, the appointment of a guardian, a trustee or an executor. An ordinary will only works after death.

What does a living will consist of?

A living will consists of one or more powers of attorney, supplemented with wishes regarding (medical) care (treatment order, treatment ban, euthanasia declaration, donor card). Attachments can also be included in the living will, such as an overview of your bank accounts, (digital) codes and passwords, insurances, art collections and the like, or, where you keep these overviews.

What can be stipulated in a living will?

A living will can record what is important in your specific situation.

You can record your wishes regarding, among other things:

• your finances, business, home and other real estate;
• gifts, whether you want to (continue to) make these and if so, under what conditions;
• granting permission to perform or not to perform medical procedures;
• the appointment of a mentor or a trustee over your assets;
• practical matters after your death (burial or cremation).

For whom is a living will important?

First and foremost, it is important for yourself to record what your wishes and requests are in the event that you are unable to put them forward (anymore). But it is also important for anyone who cares for you or works with you on a business basis to know what your wishes are. This applies to your (business) partner, your children and close family, as well as care aides.

An example: if a guardianship over your assets has been applied for, the living will is an important help for the administrator and the district judge when deciding on the sale of your house or making gifts to your children or grandchildren.

How is a living will recorded?

A living will is recorded (like an ordinary will) in a notarial deed. This means that the notary informs you about the possibilities and uses his professional knowledge and experience to advise you when drawing up a living will. Incidentally, some actions, for which power of attorney is given in a living will, can only be done by power of attorney if they are notarized (for example, to take out a mortgage).

Furthermore, a notarized deed has probative value and is comparable to a court judgment. So this also applies to (one or more powers of attorney in) a notarized living will.

And, because the living will is notarized, it is proof for everyone that you were able to express your will at that time. You were able to make your wishes known and to oversee their consequences. The notary had to be convinced of this.

Who keeps the living will?

The living will is kept in the notary's safe and the notary provides an original certified copy of the notarized deed. The deed may be registered in a Central Register of Living Wills (CLTR). The CLTR does not provide access to the contents of the living will. Only notaries have access to the data of the CTLR. This situation is similar to making and registering an ordinary will. The registration allows interested parties to find out if someone has made a living will and if it has not been revoked.

Who have access to the living will?

The living will must be available for inspection by certain individuals during your lifetime. This applies not only to yourself as the power of attorney, but also to the attorney(s) and after death to the heirs, a trustee, an executor. You can stipulate in the deed who may have a copy or extract of (the power(s) of attorney from) your living will.

If a doctor or a district judge needs information from a living will or wants to know if there is a living will, they can consult a notary. The notary can then see in the CLTR whether there is a living will, and if so, from which notary information can be requested.

Revoked?

You can revoke or amend the living will at any time by a new notarial deed. You cannot change the living will simply by tearing it up, as with a codicil.

2. Power of Attorney

Introduction

As indicated above (in Section 1), the power of attorney is the backbone of the living will. This section elaborates on the power of attorney. By going into the various components of a power of attorney, a picture is given of what is involved in providing power(s) of attorney in your living will.

This will include the following topics:

• what is a power of attorney;
• types of power of attorney;
• To whom do you give power of attorney;
• what you give power of attorney for;
• The scope of a power of attorney;
• when does a power of attorney take effect;
• substitution (sub-power) and substitution;
• (ir)revocable power of attorney;
• conflict of interest (selbsteintritt);
• account and justification;
• end of power of attorney;
• incapacity of will.

What is a power of attorney?

With a power of attorney you give someone else the ability to perform certain acts on your behalf. You are the principal and the person to whom you grant power of attorney is the proxy. If an attorney-in-fact acts on your behalf, this act is attributed to you. Of course, the proxy must act within the limits of his or her authority, which you have given. Moreover, by granting a power of attorney, you yourself do not lose the right to perform the act(s) for which you have given power of attorney. A power of attorney can always be revoked or amended.

Issuing a general power of attorney means trust. Having full confidence in the person(s) you are making proxy(s). Trusting that the proxy will not abuse the powers you have given and will manage your affairs in your best interests. The notary cannot give you a guarantee that the proxy will not use or abuse the power of attorney for his or her own benefit.

A power of attorney usually has immediate effect. The trustee can act immediately after granting the power of attorney. You can also have a power of attorney "ready to go" in case something happens that prevents you from acting yourself. For example, if you are (temporarily) hospitalized. Or if you are abroad for a while. It is also possible to have a power of attorney take effect only when a doctor declares that you are no longer able to act yourself.

In case you have not given power of attorney and you can no longer manage your own interests, there are three protective measures: mentorship, receivership and guardianship.

Your spouse, partner or close relative can ask the cantonal court to appoint an administrator. This administrator looks after your financial interests and submits an annual account of his or her administration to the subdistrict court.

Types of power of attorney

A general power of attorney is one in which the person you have authorized can do almost anything you could do yourself. This also fits with the intention with which this power of attorney is given. After all, the intention is for everything to be done by the other person at the time you can no longer manage your affairs yourself. In addition to this general power of attorney, there is the special power of attorney, the power of attorney given for a specific purpose. A common purpose power of attorney is the estate power of attorney, in which the trustee may do anything to settle an estate.

To whom do you give power of attorney?

You decide to whom you give a power of attorney to act on your behalf. You can give power of attorney to one or more persons. If you give power of attorney to two or more persons, you can choose whether you allow each person to act separately or whether they can only act together.

It is common for power of attorney to be given to the partner or for parents to give a general power of attorney to one of the children (for example, the eldest). But, if it involves selling the parental home, for example, you can stipulate that the authorized child may only do so together with his or her sister(s) and/or brother(s). You can also give power of attorney to a close friend, a professional expert or a director of your company.

What do you give power of attorney for?

You can give a general power of attorney, where you give someone power of attorney to do all the things on your behalf that you could do yourself. A power of attorney can also be very limited; a power of attorney for a specific act or for a specific purpose. For example, you give power of attorney to buy, sell or transfer a house or to sell or rent your vacation home abroad. It may also be that you will (temporarily) not be able to look after your business interests or if you have an investment portfolio and want to (temporarily) entrust the management of it to an asset manager. Conceivably, you may wish to issue a power of attorney to make donations to your children and grandchildren or to charities.

Legal representation or tax matters can also be arranged by power of attorney in the living will.

If for health reasons you can no longer decide on your medical situation yourself, you can also appoint a proxy. This person then decides what should happen in that case.

The power of attorney can be extended with a so-called care declaration. For example, which nursing home you prefer or whether or not to have blood transfusions. Such a care declaration covers your care during illness or stay in a care facility if you can no longer decide on your care yourself.

The scope of a power of attorney

You can set limits on the scope of a power of attorney to prevent abuse. The most comprehensive power of attorney is the general power of attorney to one person. The scope of this power of attorney can be limited by, for example, excluding certain actions or having more than one person together rather than one person. In the case of a power of attorney to several persons, these persons may, in principle, each act separately. By stipulating that they may only act together, the scope of the power of attorney is limited. So you can set limits by limiting the number of acts for which you grant power of attorney, not only by granting power of attorney only for a specific act or for a specific purpose, but also by limiting the powers of a proxy (always act together). A combination is also possible; proxy may perform all acts alone, except for payments above a certain amount of money which may be made only together with another proxy. A power of attorney can be customized in this way.

When does a power of attorney take effect?

In principle, a power of attorney takes effect the moment you issue the power of attorney. That is the moment of signing the notarial deed of the living will, of which the power of attorney is a part. Thus, the power of attorney takes effect immediately. But that does not mean that you can no longer act yourself.

You can allow a power of attorney to take effect at a later time, or at the time a particular situation arises. For example, the power of attorney takes effect when you can no longer properly represent your interests because of your health or so much earlier that you go into a nursing home.

Subpowering and substitution

You can specify in the power of attorney whether or not the proxy may grant the power of attorney to another person with your consent. This is called the right of substitution. The proxy must inform you of this. After all, the person to whom the proxy grants this right acts in your name and on your behalf. Granting a sub-proxy does not mean that the first proxy himself may no longer act. His position is no different from that of you as principal. After all, you also remain authorized to act.

The law says that a proxy may not give power of attorney to another person out of his own authority. The reason is that you choose a person as a proxy because of his qualities and the trust you have in this person. The law gives three exceptions to this prohibition of substitution.

1. The proxy may grant the power of attorney (in part) to another person if it arises from the "from the nature of the (legal) act or is in accordance with custom."

Proxy has power of attorney to collect receivables. He may use a collection agency for this purpose.

2. If it is in your interest, but only in a situation that you and proxy cannot act yourself.

You are temporarily in hospital and the proxy is abroad, so he cannot arrange certain matters for you. Proxy may give another person a sub-power to do so.

3. If property is abroad and proxy does not live in that country.

The proxy lives in the Netherlands and has power of attorney to sell the vacation home abroad. He cannot be present on site all the time, including to sign the deed of transfer. The attorney-in-fact may authorize another person to do so.

You determine whether you allow substitution or not. You can exclude the legal substitution indicated above.

In addition, you can arrange for the proxy to put someone in his place. Proxy is then no longer proxy himself. He actually terminates the power of attorney.

You give power of attorney to your accountant, working at a specific accounting firm. A firm that also handles your tax affairs. The proxy accountant leaves that firm and puts his successor accountant in his place as your proxy.

Thus, it is possible that the attorney-in-fact may give all or part of the power of attorney to another person or that the attorney-in-fact may substitute another person in his place. In the first case (substitution), the proxy himself can still use the power of attorney and in the second case (substitution) he cannot. A combination of sub-power and substitution is also possible.

The attorney-in-fact has power of attorney to manage all your affairs (general power of attorney) and gives sub-power to someone else to manage your investment portfolio (for example, to an intermediary at a bank). In addition, the proxy appoints someone else in his place to sell your vacation home in Italy. Proxy may still manage your investment portfolio himself, but he may no longer sell the vacation home.

With an irrevocable power of attorney (see below), the proxy may, in principle, give the power of attorney to someone else. You can deviate from this and stipulate in the power of attorney that the irrevocable proxy may not give the power of attorney to another person. Especially in a situation where trust in the person to whom the power of attorney is given is decisive for you to give the irrevocable power of attorney. In that case, sub-power of attorney or substitution is not advisable.

(Irrevocable) power of attorney

The main rule is that every power of attorney is revocable. However, you can stipulate that the power of attorney you give is irrevocable. In a living will, you generally give power of attorney to represent your interests when you are no longer able or willing to do so yourself. It may be in the interest of another person - the attorney-in-fact or a third party - for a power of attorney to be irrevocable. For example, you want to give your child(ren) the gift tax-free amount each year, even if you can no longer transfer this amount yourself. With an irrevocable power of attorney, the trustee can do that for you without any discussion of whether you would have wanted to continue the annual gift. Another example is the power of attorney where a shareholder has given an irrevocable proxy to exercise the voting rights on his shares.

The proxy, even with an irrevocable power of attorney, always remains authorized to act himself. The irrevocable proxy can only not be revoked or changed. If you revoke it anyway, it has no effect. Furthermore, the law stipulates that an irrevocable power of attorney must be given in the interest of the proxy or a third party. If this is not the case, the power of attorney has no legal force.

Selbsteintritt

It happens that a proxy acts on your behalf and at the same time acts for himself. For example, you have given power of attorney to your eldest son to sell your house to your children when you live in a nursing home. Your son sells the house (in part) to himself and thus acts as buyer. This may create a conflict between the interests of both of you.

The law indicates as a limit that a proxy may also act on behalf of himself as the counterparty of you as the principal (selbsteintritt), but then the content of the act to be performed must be absolutely clear, so that there is no conflict between your interests as principal and the interests of the proxy. For this reason, a power of attorney may specify precisely the acts for which a proxy may also act with himself as the counterparty. For example, the attorney-in-fact may make donations to himself or herself on your behalf, but only donations up to a certain amount or donations in the range that you yourself have always made. However, such a restriction need not be included.

You can specify in the power of attorney in your living will whether or not the trustee may also act for his or her own benefit.

Accountability

You can stipulate in your living will that the proxy must regularly give an account to you. You will then be kept informed of the actions the proxy has performed on your behalf. In addition, you can judge whether your affairs are being handled properly. If you are no longer able to give an account yourself, you can, for example, appoint your partner, an accountant or another (professional) person as supervisor. The attorney-in-fact will then render accounts to the supervisor. In this way, you or the supervisor are able to assess whether the trustee is managing your affairs as desired. And if not, you can revoke the power of attorney (better).

You can discharge the trustee after the trustee has rendered an account to you (and/or to a supervisor). The attorney-in-fact then has no debt (anymore) for actions he or she has performed on your behalf. It may be that you do not want to grant discharge because you have suffered damage due to the actions of the trustee. It is advisable to stipulate that in that case the trustee must compensate the damage. However, you must be able to prove that you have suffered damages due to the actions of the trustee.

You can also arrange for the trustee to notify you after every act or after a particular act he has done on your behalf.

The way a trustee gives accounts is similar to the way a (testamentary) trustee does. A trustee must do so annually and at the end of the trust. The trustee will have to tell you what action he has taken and how and why.

End of power of attorney

In principle, a power of attorney ends upon your death. But also when you are placed under administration or under guardianship. Of course, you can terminate (revoke or modify) the power of attorney yourself. Furthermore, the power of attorney ends if you have given it for a certain period or for a certain action or purpose. The power of attorney also ends if a proxy terminates it or dies. If the proxy is authorized to substitute another in his place, his power of attorney does not in principle end; he too remains authorized. However, the proxy must inform the principal that he has appointed someone else in his place. You can then assess whether you want to maintain the substitute.

If you or the attorney-in-fact go bankrupt or if there is a debt restructuring scheme for natural persons, the power of attorney also ends.

The irrevocable power of attorney does not end automatically in the event of death or receivership. You can stipulate that the irrevocable power of attorney does end upon death or placement under guardianship. If you do not do this, the court may determine to modify or terminate the power of attorney if there is reason to do so.

Examples:

The power of attorney to your partner ends when the relationship (marriage, registered partnership or cohabitation) has ended.

The power of attorney to your business partner ends when the cooperation with this person ends due to dissolution of the partnership or when he is no longer a co-shareholder of a limited liability company.

If you have appointed a supervisor and you have empowered him to revoke the power of attorney, this is also an option for ending the power of attorney.

At the end of the power of attorney, you can ask to return the power of attorney. The law says the proxy must do that. If you revoke a power of attorney, it is important that you tell the proxy and, if necessary, confirm it by registered mail. Prevent the revoked power of attorney from being misused.

At your request, the notary can make a note of this in the living will. If a proxy nevertheless uses the power of attorney, the party with whom you are dealing can inquire with the notary whether the power of attorney has been revoked or is still valid. If you suspect that proxy will abuse - former proxy will not return power of attorney - the revoked power of attorney, you can ask the district judge to tell the outside world that the power of attorney is no longer valid.

Sometimes the proxy can still act after a power of attorney has ended. For example, if after death an act cannot be postponed without prejudice; or if after being placed under guardianship it is to manage a business.

Incapacitated?

Suppose you can no longer control your will. For example, if at some point you can no longer judge the actions of the proxy or you can no longer revoke the power of attorney because you have become incapacitated. Willful incapacity does not result in the trustee no longer being allowed to use the power of attorney. And then it is about trust, the trust you have in the person or persons you have made proxy(s).

A power of attorney is usually issued just in case proxy can no longer control his will. The power of attorney may stipulate this in so many words.

3. Entrepreneur's Power of Attorney

What is an entrepreneur power of attorney in a living will?

An entrepreneurial power of attorney in a living will can ensure that your business can always continue. Problems can arise at the time when you as an entrepreneur are unable to act yourself. Or simply because it is not convenient for you. It must be prevented that your company comes to a standstill when you are (temporarily) out of circulation and therefore you cannot or insufficiently provide leadership.

Entry in the trade register?

A power of attorney is widely used in entrepreneurial country. You can think of the power of attorney to make payments or to make certain transactions, for example up to a certain amount. If a proxy has broad powers, this person can be registered in the commercial register at the Chambers of Commerce. Especially if this makes sense for your business partners to see who may represent your company and in what area.

Registering a proxy in the commercial register is somewhat different from giving an entrepreneurial power of attorney in a living will. The former usually involves a power of attorney given to a director of finance, a director of human resources or, for example, an employee of a store. This power of attorney is then given because of the ability to act in a particular position. The entrepreneurial power of attorney in a living will has a different purpose. Namely by recording by whom and how to act during your lifetime if you (temporarily) can no longer look after your own entrepreneurial interests. The entrepreneurial power of attorney is not registered in the commercial register.

For whom is an entrepreneur power of attorney important?

An entrepreneurial power of attorney in a living will makes sense for anyone who has a business; a sole proprietorship, a partnership, a general partnership, a limited liability company. But also a director of a (family) foundation or a foundation administration office can benefit from an entrepreneurial power of attorney. An entrepreneurial power of attorney is not only important for you as entrepreneur, shareholder and/or director, but also for your (business) partner, anyone you work with or your co-shareholders or co-directors.

What do you grant power of attorney for in an entrepreneurial power of attorney?

You can manage all your affairs as an entrepreneur, partner, director or shareholder, that is, all actions without exception in any area of law (business law, corporate law, tax law). For example, you can give power of attorney to make investments, establish legal entities, amend articles of association of a company or to cast votes in a shareholders' meeting.

You do not have to give a corporate proxy for all your affairs. You can limit the power of attorney by issuing it only for specific acts or for a particular purpose. You can also limit the power of attorney to conduct almost all of your business as a proxy if you appoint more than one proxy. You can stipulate that the proxies are each allowed to do all actions individually, except for some, which must always be done by the proxies together. For example, the termination of (part of) your company, cooperation with other companies (merger, joint venture), making investments above a certain amount or dismissing your employees.

Previously in Section 2, we will discuss in more detail the various components of a power of attorney and give an idea of what is involved in giving power of attorney(s) in your living will.

4. Abroad Power of Attorney

What is a foreign power of attorney in your living will

A foreign power of attorney in your living will is specifically intended in case you have assets abroad. For example, your vacation home in Spain, a Swiss savings account or shares in a foreign company. Dutch law applies to (the power of attorney in) your living will. Your properties abroad will often fall under a different law, the law of the country where the vacation home is located or where you have a company. Each country has its own rules of (international) law.

A (general) power of attorney in which the person you have empowered can do almost anything with regard to your foreign assets that you could do yourself, can cause problems if it is not specified exactly what you are giving power of attorney for. Furthermore, there is often a requirement abroad that there must be two proxies. One signature is usually not sufficient. For these reasons, a customized foreign power of attorney in your living will is essential.

Revocation

A foreign power of attorney can be revoked or modified at any time by a new notarized instrument. Revocation or modification is always done by notarized deed. This is because a large number of acts for which you give power of attorney under foreign law require a notarized deed of power of attorney. A notarial deed has probative value and is similar to a court judgment.

Choice of law

Dutch law applies to your (foreign power of attorney in your) living will. This means that the foreign power of attorney (and the other provisions in your living will) is (are) governed by Dutch law. However, this does not exclude that a certain action with respect to your assets abroad is governed by the law of that country. This also depends on international regulations and the national law of the country.

5. Mentorship, guardianship and receivership

Introduction

You can state in your living will what your wishes are in the event that the cantonal judge must make a decision about, for example, the administration of your assets. If your mental or spiritual capacity fails or (temporarily) deteriorates, you may no longer be able to determine your own will, arrange your finances or exercise your rights as a patient. There are three protective measures, namely mentorship, guardianship and receivership. These measures allow someone else to look after your interests and make decisions or actions for you.

What is mentoring, guardianship and receivership?

Mentorship is for people who can no longer manage their personal interests. A mentor protects you on a personal level. So it is not about your money or your goods. If you can no longer decide for yourself about your care, nursing or (medical) treatment, a mentor will do that for you.

Guardianship of your assets is intended to look after your financial interests when you are (temporarily) no longer able to do so yourself. It is not always necessary for all of your assets to be placed under guardianship. However, the administrator must make decisions together with you for as long as possible. If you disagree, the judge will cut the Gordian knot.

Guardianship is the most drastic protective measure. It protects you as a person and your assets. When someone is placed under guardianship, they no longer have legal capacity. This means that no more actions may be taken without the curator's permission.

Who applies for mentorship, guardianship or receivership?

First of all, you yourself can apply for mentorship, guardianship or curatorship. Furthermore, your partner and your relatives up to the fourth degree (parents, grandparents, (grand-) children, brothers, and sisters, aunts and uncles and cousins) can ask the cantonal judge to appoint a mentor, administrator or curator. In addition, the prosecutor can request mentoring, administration or guardianship. For example, if you have no family (anymore) or in case a request from a family member is difficult because of family relationships. Furthermore, in certain situations, a care facility where you currently live may request mentorship.

Who can you appoint as mentor, administrator or curator?

In your living will, you can record your wishes as to whom you would like to appoint as your mentor, administrator or curator. The district judge can take this into account. You can appoint several people together, for example your partner together with your eldest child. A mentor and curator must always be natural persons. An administrator can also be a legal person, for example a foundation.

What can you arrange in your living will regarding mentoring, guardianship and receivership?

In your living will you can lay down your wishes in case the cantonal judge has to make a decision whether you need a mentor or it is better for you that your assets are put under guardianship. It is also conceivable that, because of your condition, you may need protection in the form of being placed under guardianship. For all of these situations, you can establish your wishes in advance. Who do you want as a mentor or who do you not want as a mentor? Do you prefer an administrator? For example, your partner or your accountant. You can also request that two people be appointed as joint trustees or appoint a person you would like to see appointed as your successor.

You can ask a mentor to take into account, for example, the medical treatment power of attorney you have included in your living will. He can then take into account your will regarding the medical treatments and care you do or do not want to undergo or your euthanasia declaration.

You can ask an administrator to (continue to) make certain donations, record to whom you want to (continue to) donate and how much. For example, the amount that may be given annually to children or grandchildren without paying gift tax. Or donations to certain charities. You can include a procuration arrangement or a dispute resolution arrangement in case there will be two trustees.

It may be important for a trustee or receiver to know what is in your (ordinary) will. In that case, it is advisable to establish in advance that you give the notary permission to provide a copy of your will (as soon as the administration or receivership takes effect).

Do you have a business? Then it is wise to record, for example, who will succeed you as director/manager or when the business may be sold.

Who do your wishes regarding a mentor, guardianship or receivership matter to?

First and foremost, it is important for yourself to be able to record your wishes in case a mentor, administrator or curator needs to be appointed. It is good for the district judge to know what your wishes and motivations are for certain choices you make. It is not inconceivable that the judge may need to hear family members before making a decision about mentoring, administration or guardianship.

Suppose you regularly donate a certain amount of money to your children and your assets are placed under guardianship. If the administrator wants to continue these donations on your behalf, the cantonal judge must give permission. The cantonal judge can then take your wishes into account.

Will power

If you are again capable of looking after your interests yourself, you can ask the subdistrict court to terminate the mentorship, guardianship or receivership. Mentorship, guardianship and receivership always end upon death.

6. Medical treatment power of attorney

What is a medical treatment power of attorney in your living will?

A medical treatment proxy in your living will sets out your wishes if you are physically or mentally unable to care for yourself. Or, for example, you can no longer make decisions about how you want to be cared for or receive medical treatment.

The medical treatment power of attorney is specifically designed to influence certain decisions in the future when you are incapacitated. The person you have authorized or to whom you make a request by recording a written will then knows what to consider.

For whom is a medical treatment power of attorney important?

First and foremost, it is important for you to record your wishes in case you find yourself in a situation where you are no longer able to express them. It is also important for everyone around you to know what your wishes are if, for example, you fall into a coma or become demented. You will then no longer be able to determine your will, which is called incapacity. In such a situation a proxy, a person you trust completely, can look after your personal interests. Last but not least, a power of attorney for treatment or, for example, a request for euthanasia is important for your attending physician(s) and other health care providers.

To whom do you give power of attorney?

You decide who you want to give power of attorney to act as your proxy if you can no longer tell yourself whether you want to receive a certain medical treatment. For example, you can designate your partner, a family member or another trusted person. In practice, this person is also called your mentor instead of trustee. If you have not appointed a mentor, the district judge can appoint a mentor. Furthermore, you can give instructions to a doctor or other caregiver. For example, a non-treatment order or just a treatment order.

What do you give power of attorney for in a medical treatment power of attorney?

In a medical treatment power of attorney, among other things, you give power of attorney to look after your medical interests, to be allowed to obtain medical information and data or not. In addition, you can record a number of statements regarding your end-of-life wishes, such as a non-treatment statement, a euthanasia request or a dementia statement. You can also consider a dementia declaration, which states what you want if you no longer recognize your partner, children or other loved ones. Or a donor codicil giving you permission to transplant organs or tissues after your death. You may make all of these statements yourself and do not need to be notarized in a living will. Nevertheless, it is a good idea to do so, or to include these statements as an appendix to your living will. After all, the notary must satisfy himself that you are fully capable of determining your will at the time you draw up and sign your declaration. In addition, it is established to doctors and others that at the time you gave the instructions, you were able to fully appreciate the consequences of your decisions.

The Medical Treatment Agreement Act gives patients the right to a so-called "non-treatment statement." The non-treatment statement, unlike an ordinary will, is not executed verbatim, but in the spirit of what you stated in it. The social worker or doctor, together with your authorized mentor, will explain the non-treatment statement as best they can according to your intentions. In a non-treatment statement, you state which (medical) treatments you do not want to undergo. If you have not made a non-treatment statement, you will be treated according to the generally accepted views in health care.

The non-treatment statement is not the same as a euthanasia statement. With the latter declaration, you are asking for end-of-life medication if your life is hopeless or if you are in unbearable pain. You can specify what you understand by unbearable and hopeless suffering. Your euthanasia declaration, to the extent permitted by law, can be appended to your living will. You can also suffice by merely stating in your living will that you have a declaration of euthanasia and that your doctor(s) and your partner, family or proxy have been informed of it.

You can use the dementia declaration to indicate to (actively) end your life in case of dementia. You can indicate what type of symptoms of dementia and at what age you are thinking of doing so.

You can attach a donor codicil to the living will. If you have already registered a donor form, you can record in the living will that you already have a codicil indicating your wishes regarding what happens to your organs and tissue after death. As a result, your family or partner will not suddenly be faced with an unavoidable fact and have to make a choice for you. Another important aspect is that your mentor or attorney-in-fact can, if necessary, tell the doctors treating you whether, for example, you want your heart, liver or lungs transplanted after death.

Usually a living will specifies the situation or circumstances in which a person does not want to be treated. Of course, you can also stipulate in the living will that you do want to be treated. You then provide a treatment order, stating that you want life-extending measures that will keep you alive as long as possible. Even if others doubt whether life still makes sense for you.

Consulting a physician

We recommend that before you have a treatment proxy, a non-treatment order or any other (medical) care declaration drawn up, you consult a doctor. He can advise you. It is good that your doctor is aware of your wishes regarding your physical and mental health care. Then put your statements in writing in or attached to the living will, thereby establishing that you were clear and able to exercise your will at the time you signed your living will.

Revoke

Not only can you revoke or modify your living will at any time as long as you have the capacity to will, but you can also revoke or modify your end-of-life choices that you have recorded in various forms (power of attorney, medical statements and the like).