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Published online by Cambridge University Press: 08 May 2020
INTRODUCTION
European legislators have come up with different legal regimes to provide for situations in which a person – due to old age and/or disease – is unable to make decisions for him- or herself. One of these instruments is the living will, also known as an “advance decision” or an “advance directive” concerning medical care. This legal instrument has been constructed to ensure that a person's will concerning medical treatment is adhered to even at a time when the patient is unable to make the required decisions. This does not apply to elderly people only, but also to people with terminal illnesses and people who, for religious reasons, object to special medical treatments.
Providing health care directions for a future incapacity is a legal undertaking which stands at the threshold between many legal disciplines. The link to health law and the law dealing with incapacity is obvious. However, health care directions are also linked to criminal law when it comes to the question of differing between rightful medical treatment, to which the patient consented, and penalized treatment causing bodily harm or even homicide, where the patient did not consent. Here physicians need clear guidelines on the existence of a valid consent. Public law is also involved when it comes to the questions of how far the duty of a state with respect to the protection of life goes, and how far the selfdetermination of a patient reaches respectively.
This article will focus on the private law aspects of living wills as part of the law on incapacity. Before I go into the details of the German law on living wills, I would like to provide a short overview of the legal rights and interests concerned; followed by a detailed analysis of the preconditions and legal consequences of a living will as set out in the German Civil Code. I conclude with a short analysis of whether the German law succeeds in striking a balance between the rights and interests involved.
THE PROTECTION OF ELDERLY PERSONS ESP. CONCERNING MEDICAL CARE
RIGHTS AND INTERESTS
Low birth rates and a slow but steady increase in life expectancy characterise the age structure in the European Union.
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