People who anticipate becoming legally incapacitated, for instance, due to conditions like dementia, have been able to document their wishes, preferences, and instructions regarding financial, medical, and personal matters in a "living will" since 2010. In most cases, a representative, often a family member, is responsible for executing the living will.
A notary public drafts a living will, utilizing the legal framework of power of attorney. This means that a representative, such as a family member, is granted the authority to make decisions on behalf of the person creating the living will. But is this sufficient? According to Stelma-Roorda, it is not. "Specific legislation tailored for the living will is lacking, even though it is crucial from a human rights perspective. The living will becomes active when the creator is no longer capable of safeguarding their own interests. Naturally, in that capacity, the creator also finds it increasingly challenging to oversee the execution of the living will. Abuse and mismanagement of the living will are potential risks. Moreover, international human rights agreements dictate that individuals facing declining mental capacity must be protected, and their independence should be ensured whenever possible. There is currently no legislation addressing this."
Legal Framework for Living Wills
Stelma-Roorda advocates for a separate legal framework for the living will. However, according to her, the process of creating a living will could also be improved. "Values, wishes, and preferences that were once important to the creator may change over time. The creation of a living will should not be a one-time act but the beginning of a process in which the adult makes provisions for a future period of legal incapacity. It would be beneficial if the creation of a living will is followed by regular conversations between the creator and the representative about the person's (changing) values, wishes, and preferences."