A living will is a declaration of intent of a person in the event that they (effect) can not their will declare to doctors, nurses or device makers. It relates to medical measures such as medical interventions and is often related to the denial of life-prolonging measures. What exactly is meant by an advance directive depends on the respective (national) legal system .
The legal institution of the living will was regulated for the first time in Germany by the third law amending care law. The law enshrined the living will in the German Civil Code (BGB). It came into force on September 1, 2009 after intensive social and parliamentary discussion. The aim of the 3rd Amending Childcare Rights Act was to create more legal certainty for all parties involved with regard to the rejection of life-prolonging or life-preserving measures in the run-up to death (waiver of treatment ) through a statutory regulation .
In terms of legal philosophy, the living will is an exception in care law because, in contrast to all other regulations there (apart from sterilization), it puts the will over the well-being.
legal definition of the living will:(1) sentence 1 BGB contains a
- "If an adult who is capable of giving consent has stipulated in writing in the event of his inability to give consent, whether he or she will consent or prohibit certain examinations of his state of health, medical treatments or medical interventions that are not yet imminent at the time of the determination (living will), [...]"
According to the current legal situation, the living will must be in writing . Oral advance directives are not automatically invalid. According to Abs. 2 BGB "close relatives and other confidants of the cared for should be given the opportunity to comment, provided this is possible without considerable delay." If the author of the living will can no longer provide a comprehensible signature , a notary must certify the hand sign ( BGB). Anyone who cannot write at all depends on notarial certification ( BGB, Notarization Act ).
However, only a regulation that has been made for a case that is not yet imminent applies as an advance directive. It does not include what applies to a specific imminent action in the near future. Therefore, prior to a certain operation, determinations could also be made orally, for example.
Adult who is capable of giving consent
For the ability to give consent, the benchmark is specific in two respects: First, it must be based on how high the intellectual abilities of the respective person are (not just the average abilities of a person of this age or condition). Second, it depends on how difficult it is to grasp the respective situation, i.e. in particular how complex and possibly serious the specific intervention (such as an operation) is.
In the event of his inability to consent
According to the legal definition cited above, the living will is only valid for the time in which the patient is unable to give consent . An inability to consent can occur, for example, if the patient is in a coma , the patient's brain is damaged and / or he is mentally impaired due to dementia .
A living will is only to be used if the patient is incapable of making decisions or giving consent. Particularly in cases of progressive dementia, a clear clarification of the applicability can be difficult: If the patient is still able to give consent, he has to decide himself whether to initiate or refrain from medical measures. He must be informed about the relevant issue on which he is to decide and understand it. Only when it becomes apparent that the patient no longer understands the situation does his living will come into play. In case of doubt, the ability to consent and make decisions must be clarified with the help of an expert. If the current expressions of life of the demented patient unable to consent contradict the stipulations made in the living will, the reasons given in the law may indicate that the treatment situation at hand does not comply with the provisions of the living will. Then u. a. the question of whether the living will will not be applied unless sufficiently specific stipulations have been made for this case too. In the literature it is controversial which expression of will is to be given priority and whether the living will is therefore considered to be revoked, whether an attribution is ruled out for other reasons or whether the patient can veto with natural will.
Advance directives must describe the medical situations that have not yet occurred and their desired consequences in sufficient detail. Expressions such as "If there is no prospect of improvement in the sense of a tolerable and environmentally friendly life for me, I do not want any life-prolonging measures ..." are therefore, if not negligible, at least doubtful in their binding effect. At least it should be stated what the disposer understands by a tolerable and environmentally-related life. It is advisable to describe as precisely as possible in which situations the treatment requests from the advance directive should apply, e.g. B. "are my life functions so impaired that I have lost my ability to make decisions due to severe brain damage" and Ä. In addition, it should be described or ticked as precisely as possible, what should then not be done (any more) B. no artificial respiration , no resuscitation or no antibiotics .
The Federal Court of Justice 2016 on the certainty of the living will
With a decision of July 6, 2016 (Az. XII ZB 61/16), the Federal Court of Justice decided that an advance directive only has a binding effect if the exhibitor clearly expresses his will in it. In the view of the judges, however, this should presuppose that it is specifically determined what the person concerned wants and what not in a certain treatment and life situation. Only general instructions should therefore not be sufficient on a regular basis. In practice, this is likely to mean that a large number of advance directives are ineffective and have to be redesigned.
The Federal Court of Justice 2018 on the certainty of the living will
With a decision of November 14, 2018 (Az. XII ZB 107/18), the Federal Court of Justice specified its decision of July 6, 2016. The requirements for the specificity of an advance directive must not be too high for patients. Accordingly, a valid living will does not necessarily have to describe specific medical measures. In individual cases, the necessary clarity of the living will can also result from reference to sufficiently specified illnesses or treatment situations . In this way, the Federal Court of Justice strengthens patients' right to self-determination. If anything is unclear, witness statements can also be consulted.
"A living will can be revoked informally at any time."
In contrast to the disposal itself, no written form is required under German law for revocation. The revocation can also be made verbally or without words through appropriate behavior . It just needs to be made clear that the patient's wish has changed. It is controversial whether the “natural” will of the person concerned is sufficient for the revocation, or whether - as is the case for the drafting of the living will - the ability to give consent is required. This question arises in particular with the statements made by a patient who is already suffering from dementia and who expresses himself differently in the state of the disease than he specified in his advance directive.
In the living will, the (future) patient determines which actions should or should not be carried out. The living will , on the other hand, does not regulate which persons are allowed to make the resulting decisions or should ensure that the patient's will is put into practice. The selection of these persons can be made or at least influenced in a health care proxy or a care decree.
With a health care proxy, a proxy is authorized to represent the (future) patient (principal) in certain matters. This need not be limited to the actions that can be named in an advance directive. The person authorized by the health care proxy is not a legal guardian . The authorization can make the appointment of a supervisor superfluous.
In the event that supervision should (nevertheless) become necessary, a person can be suggested in a supervision decree who should be appointed as a supervisor and / or names who should not be a supervisor. The supervisory court must comply with this suggestion if it is not against the patient's wellbeing.
The living will is decisive for the decisions to be made by the supervisor or the authorized representative in the medical field. The wording of paragraphs 1 to 3 ofBGB refers to the fact that a carer is responsible for the patient. In paragraph 6, however, it is made clear that these standards also apply mutatis mutandis if an authorized representative is responsible on the basis of a health care proxy:
"Paragraphs 1 to 3 apply to authorized agents accordingly."
Finally, a living will must be differentiated from a treatment request, which also represents a precautionary declaration of will about the type, scope and duration as well as the circumstances of a treatment, but does not meet the requirements of a living will ( Paragraph 2, Paragraph 3 BGB).
The question of whether a living will is binding arises when the patient is unable to give consent, because any medical treatment requires the patient's consent. If the patient cannot consent himself or cannot express his or her will, the patient is represented by a supervisor or an authorized representative.
Since 2009 (see below) the living will and in particular the binding nature of the living will have been regulated by German law.
For the supervisor or the authorized representative, the living will is directly binding according toParagraph 1, Sentence 2 of the German Civil Code. The liability applies regardless of the type or stage of illness of the person being cared for. Caregivers or authorized representatives must express and validate the will expressed in the living will if the stipulations in the living will apply to the current living and treatment situation. You have to check whether this is the case. It is therefore important to combine a living will with a power of attorney. A will expressed in a living will is binding if
- the ability to make judgments when drawing up the living will cannot be questioned.
- the author has made specifications for the life and treatment situation that is now to be decided,
- the will is not directed towards behavior that is subject to a legal prohibition,
- the will is still relevant in the treatment situation and
- there are no indications that the living will came about as a result of external pressure or an error.
To those expressed in the advance directive will be under the stated conditions, the guardianship court bound when to is called BGB to consent, failure to consent or revocation of consent of the supervisor in relation to a life-threatening or omission of a life-support or - to approve the extension measure. The supervision court approval is unnecessary if there is agreement between the supervisor and the treating doctor that an intervention or its omission or its termination corresponds to the will of the person being cared for ( (4) BGB).
The patient will , according to BGB also relevant to the doctor. If a living will is available, the attending physician must first check which medical measures are indicated with regard to the overall condition and prognosis of the patient. Then he and the caregiver or the authorized representative must discuss these measures, taking into account the patient's wishes.
The supervisor or authorized representative alone has to decide on the basis of this conversation whether these measures discussed with the doctor would enforce the will expressed in the living will or whether a conflicting patient's will can be clearly and reliably determined. ((1) BGB). Close relatives and other confidants of the person being cared for should be given the opportunity to comment, provided that this is possible without significant delay ( (2) BGB). However, they do not have a right of codecision.
The previously applicable range limit, according to which a patient's will to forego life-support measures, could only be followed if death is imminent, has been removed. The constellations of so-called waking coma and dementia , which are often not associated with an imminent end of life, no longer limit the validity of the living will, which are particularly controversial in medical ethics . This legally recognizes that, even outside of an imminent death, there are reasons and motives to be recognized by society for abandoning life, and that a possible continued life can be dispensed with without someone being prevented from doing so by third parties against his will.
If life-sustaining treatment is indicated from a medical point of view, the patient decides - as with any other treatment - with his or her consent or non-consent whether the treatment may be carried out. Disregarding the patient's will can be punishable as bodily harm . An example would be the creation of an artificial gastric access in the form of a PEG against the actual or presumed will. Depending on the culpability, negligent bodily harm can also be considered instead of willful intent.
A psychiatric will , with which any psychiatric compulsory treatment is rejected, in particular placement in a closed ward of a psychiatric facility and coercive medical measures there , is ineffective in the event of a third-party hazard according to a decision of the Osnabrück Regional Court of January 10, 2020.
Review of advance directives
Many living wills do not meet medical requirements or have been drawn up incorrectly in law. In an emergency, this means that the patient's will cannot be fulfilled. Time and again, disputes between relatives and doctors are also carried out in court. The non- profit German Foundation for Patient Protection is one of the providers of non-commercial services in the field of patient rights . It offers the free verification of living wills.
Lack of an effective and appropriate living will
If there is no effective advance directive, if the patient cannot express his or her will, this does not mean, however, that the will of the patient should then be disregarded. The attending physician resp. the caregiver is required to investigate the presumed wishes of the patient. This can e.g. B. done by interviewing relatives.
Recourse to the (presumed) will
"If there is no living will or if the stipulations of a living will do not apply to the current living and treatment situation, the supervisor must determine the treatment requests or the presumed will of the person being cared for and decide on this basis whether he or she consents to a medical measure in accordance with paragraph 1 or they are prohibited. The presumed will is to be determined on the basis of concrete evidence. In particular, earlier oral or written statements, ethical or religious convictions and other personal values of the person in care must be taken into account. "
If one of the above-mentioned requirements of the definition of an advance directive is not met, the advance directive is not directly applicable and a carer has to make the decision about further treatment. This can be necessary in particular if an advance directive does not (clearly and specifically) relate to the current situation.
In making this decision, the caregiver must either comply with the patient's expressly expressed or presumed wishes.
Determination of the presumed patient's will
“The presumed will is to be determined on the basis of concrete evidence. In particular, earlier oral or written statements, ethical or religious convictions and other personal values of the person in care must be taken into account. "
If the patient's will cannot be determined, his or her presumed will must be used. The presumed will of the patient is individual, i.e. to be determined from his life decisions, values and beliefs. This can now be seen from the law. However, the legislature followed the principles that previously applied to presumed consent. The Federal Court of Justice had also previously confirmed these principles in a decision with regard to a living will (BGH, XII ZB 2/03 decision of March 17, 2003). In this respect, these sentences of the statutory regulation only have a clarifying effect.
"If nothing is known about the patient's preferences, the representative and doctor can assume that the patient would agree to the medically indicated measures."
Disregard of an existing living will
Disregarding the patient's will can be punishable as bodily harm . An example would be the creation of an artificial gastric access in the form of a PEG against the actual or presumed will. A clarification of the legal situation through the change in the care law in 2009 was also considered necessary by the political decision-makers due to the alleged increase in disregard for the patient's will and living wills by medical and nursing staff. The law does not prescribe that advance directives require expert advice to be drawn up. This means that doctors, nurses and relatives will repeatedly interpret the written or presumed will of patients who are incapable of giving consent. It also happens that living wills are presented that are assessed by doctors as unsuitable in the specific situation and are therefore not taken into account. Many lawyers, notaries and organizations offer their help in drawing up a legally secure and specific living will. The non-profit German Foundation for Patient Protection set up an advance directive arbitration board back in 2009 . According to the foundation, this helps in disputes and advises and mediates between those involved. It should be possible to check each living will within two working days free of charge.
Special situation in emergencies
In the event of an emergency, it is usually not possible to clarify in good time whether a legally significant living will is available or whether the stipulations made in a living will are relevant for the current situation. In the necessary urgency of an emergency situation, it will also be difficult to determine whether an existing order is valid and correctly reflects the last will of the patient. For this reason, resuscitation measures are often carried out even if the person concerned has objected, since the order is then usually not available. If the patient has objected to resuscitation measures, it should be noted whether he has prohibited this only in the event of his infirmity or whether he has also objected to emergency medical measures in the event of an accident or sudden attack. The attending physician should then inform the nursing staff of this in a forward-looking emergency plan. A so-called emergency form could be used for this.
If life-sustaining emergency measures have been taken contrary to the will stated in the living will, they are to be canceled or discontinued at the request of the patient who is again able to make a decision or, in the case of his continued incapacity to make a decision, at the instigation of the carer or authorized representative. Approval of the care court is not required "if there is agreement between the carer and the treating doctor that the granting, non-granting or revocation of consent corresponds to the will of the person being cared for as determined in accordance with Section 1901a." (Paragraph 4 BGB)
Deposit of a living will
According to legal supervisor to be appointed by the local court or by an authorized representative appointed by the person making the decision. Only the doctor, without the participation of a patient representative, cannot make any treatment decisions based on the living will according to the statutory provisions.Paragraph 1 of the German Civil Code, the legal guardian or the authorized representative must check whether the living will applies to the current living and treatment situation. If this is the case, he has to enforce the living will. The living will therefore always needs to be implemented by a
If the living will has been handed over to the authorized representative or legal guardian or if its place of safekeeping is known and accessible, a central deposit of the living will is not necessary.
A living will drawn up as part of a power of attorney can be registered together with the power of attorney with the Central Pension Register of the Federal Chamber of Notaries for a fee. Their database is queried by supervisory judges on the basis of (2) sentence 2 of the German Civil Code before a legal supervisor is appointed. Such registration may avoid a supervisory procedure or a presumptive-will-based decision.
In the case of private organizations, some of which offer the safekeeping of living wills for a fee, information about living wills is not regularly obtained from the courts or hospitals. For this purpose, the person disposing receives an information card to take with them, which informs about the precautions taken and should contain the contact details of the authorized representative. There are also Internet providers where documents (living wills, power of attorney, funeral instructions, etc.) can be digitally stored and provided with a reference to persons of trust and the storage location of the paper original.
Legal situation until 2009
Until 2009, the legal situation in connection with living wills was in many respects unclear and uncertain due to the lack of statutory regulation and was shaped by the case law of the courts.
A fundamental decision of the Federal Court of Justice (BGH) on March 17, 2003 was of great significance and trend-setting for the later legal regulation . According to this, living wills (as well as current expressions of will) were in principle binding. According to the BGH, if someone has made a decision on their own responsibility while exercising their right to self-determination , this decision must be respected even if the person concerned is no longer able to make decisions on their own responsibility. This requires protection and respect for human dignity . Because of the patient's right to self-determination about his or her body, forced treatment, even if it had a life-saving effect, was not permitted. A treatment carried out against the patient's declared will, which interferes with the physical integrity, is an illegal act, the omission of which the patient can demand analogously to Section 1004 (1) sentence 2 in conjunction with Section 823 (1) BGB. Disregarding the will expressed in a living will could be punishable as bodily harm
As a prerequisite for the binding force of living wills, the BGH postulated that the patient's will for the specific treatment situation must be clearly and reliably ascertained, that the person making the order must have written the order in a state capable of giving consent and that it has not clearly moved away from the order (BGH, XII E.g. 2/03 ). The ability to consent could be assumed if the patient was able to grasp the scope of his decision and freely determine his will in this regard. On capacity these resulted in no.
The Federal Court of Justice had ruled that living wills were binding for the caregiver under the conditions mentioned and that he was legally responsible for expressing and applying the patient's will to the doctor and nursing staff (BGH, XII ZB 2/03 of March 17, 2003).
The case law had also expressed itself on the binding nature of advance directives for doctors and nurses. Treatment or care that contradicted the patient's will expressed in an advance directive was then inadmissible (BGH XII ZR 177/03 of June 8, 2005) and must be terminated. The doctor or nurse could neither rely on an artificial nutrition agreed in a care agreement, nor on their professional ethics or their conscience to justify their actions. If there are insurmountable reasons of conscience, the treatment must be passed on to other hands. The Federal Constitutional Court saw no criminal consequences for the supervisor, authorized representative or the doctor or nursing staff if an advance directive had been followed, although the patient's life could have been saved if the expressed will had been disregarded (BVerfG, 1 BvR 618/93 , decision of August 2, 2001).
Legal situation after 2009
The living will is directly binding for the supervisor or the authorized representative according toBGB. The liability applies regardless of the type or stage of illness of the person being cared for. Caregivers or authorized representatives must express and validate the will expressed in the living will if the stipulations in the living will apply to the current living and treatment situation. You have to check whether this is the case. It is therefore important to combine a living will with a power of attorney. A will expressed in a living will is binding if
- the author has made specifications for the life and treatment situation that is now to be decided,
- the will is not directed towards behavior that is subject to a legal prohibition,
- the will is still relevant in the treatment situation and
- there are no indications that the living will came about as a result of external pressure or an error.
To those expressed in the advance directive will be under the stated conditions, the guardianship court bound when tois called BGB to consent, failure to consent or revocation of consent of the supervisor in relation to a life-threatening or omission of a life-support or - to approve the extension measure. The supervision court approval is unnecessary if there is agreement between the supervisor and the treating doctor that an intervention or its omission or its termination corresponds to the will of the person being cared for ( (4) BGB).
The patient's will is also decisive for the doctor. If a living will is available, the attending physician must first check which medical measures are indicated with regard to the overall condition and prognosis of the patient. Then he and the caregiver or the authorized representative must discuss these measures, taking into account the patient's wishes.
The supervisor or authorized representative alone has to decide on the basis of this discussion whether these measures discussed with the doctor would enforce the will expressed in the living will or whether a conflicting patient's will can be clearly and reliably established (cf.Paragraph 1 BGB). Close relatives and other confidants of the person being cared for should be given the opportunity to comment, provided that this is possible without significant delay ( (2) BGB). However, they do not have a right of codecision.
The previously applicable range limit, according to which a patient's will to forego life-support measures, could only be followed if death is imminent, has been removed. The constellations of so-called waking coma and dementia, which are often not associated with an imminent end of life, no longer limit the validity of the living will, which are particularly controversial in medical ethics. This legally recognizes that, even outside of an imminent death, there are reasons and motives to be recognized by society for abandoning life, and that a possible continued life can be dispensed with without someone being prevented from doing so by third parties against his will
Negative certificate from the supervisory court
In the case of an advance directive, the termination of a life-sustaining measure does not require the approval of the supervisory court pursuant toParagraph 2 of the German Civil Code, if the patient has already stated his or her own will in an effective advance directive and this applies to the specific life and treatment situation. If the court is called on because one of the persons involved has doubts about the binding effect of a living will and the court comes to the conclusion that an effective living will is available that applies to the current living and treatment situation, it must issue that a court approval is not required (so-called negative certificate).
In Austria, a living will law (PatVG) was passed in May 2006 , which came into force on June 1, 2006.
The definition of the living will can be found in paragraph 1 ofthis Act and in the following paragraph 2 it is specified in more detail:
Under this law, patients can decide up to eight years in advance which treatment methods to refuse if they are no longer able to make decisions at the time of treatment. A distinction is made between the "binding" and the "considerable" advance directive. Extremely strict formal requirements are mandatory for a binding living will, including medical advice from a doctor and legal advice from a notary, a lawyer or the patient advocate . If all formal requirements are not adhered to, there is a "considerable" order that the doctors can use at least as a guide.
According to Section 7 (1) PatVG, a living will loses its binding force after eight years from its creation, unless the patient has specified a shorter period. With regard to the validity, it is of course fundamentally important to what extent the patient was able to assess the illness situation to which the advance directive relates and its consequences at the time of establishment, how specifically the medical treatments that are the subject of the rejection are described, how comprehensively one preceding the establishment The medical advice provided was how often the living will was renewed and how long ago it was last renewed.
The Austrian Living Will Act does not, of course, affect emergency medical care if the time required to search for a living will seriously endangers the patient's life or health.
Since 1 July 2007 (entry into force of trustees Law Amendment Act) is in Austrian law, the power of attorney as a priority legal institution to a Sachwalterschaft been normalized by law. The regulations can be found in , and ABGB .
In Switzerland, the legally binding nature of the living will is regulated in the new adult protection law in Articles 370 of the Civil Code (ZGB) at federal level. It came into force on January 1, 2013.
Article 370 paragraph 2 ZGB also expressly stipulates the possibility of transferring a power of attorney for medical decisions to another person. This person can also be given specifications for the decisions (Article 370 paragraph 2 sentence 2 new ZGB).
The “following persons” of a patient who is incapable of judgment are given the opportunity to initiate a review by the adult protection authority with regard to the living will and its compliance (see Article 373, Paragraph 2, Clause 2 of the new ZGB on the objectives of such a review).
In the new Article 378 of the Civil Code, the order of decision-making authority for medical measures is specified. After the persons specifically - as in a living will - relatives of a person incapable of judgment are listed here.
In addition, there are a number of different organizations that have drawn up advance directives. The most important editors include non-profit organizations such as Caritas Switzerland , Pro Senectute , Dialog Ethik and patient organizations, as well as the euthanasia organizations Exit and Dignitas . With some of these organizations it is also possible to deposit the living will that has been drawn up, for example with Dialog Ethik and Exit; The people who have signed a living will receive an ID in credit card format. Thanks to this ID, the doctor, relatives or the organization can be asked if there is a living will. Hospitals are now obliged to ask for a living will when a patient enters. Caritas Switzerland also gives people who have written an advance directive an ID in credit card format. Caritas Switzerland refrains from making a deposit because life-saving measures are taken in an emergency. Only in a second step is there a decision about whether to continue or stop life-sustaining therapies. Until then, it is possible for relatives or loved ones to obtain the original of the living will. As part of the above-mentioned adult protection law, from January 1, 2013 there will also be the option of making an entry on the personal health insurance card as an indication of the existence of a living will.
Individual organizations also offer relatives support with problems with enforcing the orders. Mostly, however, spouses and close relatives are also in possession of these documents.
- Axel W. Bauer : Limits to self-determination at the end of life. The living will as a patent solution? In: Journal of Medical Ethics. Volume 55, 2009, pp. 169-182.
- Federal Ministry of Justice (Ed.): Living Wills. Suffering - sickness - dying. How do I determine what medical action should be taken if I am unable to make a decision? 2010 ( bmjv.de [PDF; accessed on December 31, 2015]).
- Federal Medical Association : Recommendations of the Federal Medical Association and the Central Ethics Committee at the Federal Medical Association on dealing with health care proxy and living will in medical practice (PDF; 231 kB), Deutsches Ärzteblatt, Volume 107, Issue 18, May 7, 2010, pp. A 879–882.
- Federal Medical Association: Principles of the Federal Medical Association for medical terminal care (PDF; 145 kB), Deutsches Ärzteblatt, Volume 108, Issue 7, February 17, 2011, pp. A 346–348
- Rolf Cloeppus: Open questions about the “ Living Will Act ” . In: Neue Juristische Wochenschrift (NJW) 2011, pp. 2085 ff.
- Thomas Diehn, Ralf Rebhan: Power of attorney and living will . NJW 2010, p. 326 ff.
- Erik Hahn: The “new” legal position on living wills . KU Health Management 12/2009, pp. 53–54.
- Wolfram Höfling : The new living will law . In: NJW . 2009, p. 2849-2852 .
- Gerhard Geckle: living will and will . 2nd Edition. Haufe Verlag, 2008, ISBN 978-3-448-08594-5 .
- Wolfgang Lange: The Living Will Act - overview and critical appraisal - . In: Journal for Inheritance Law and Asset Succession (ZEV) . 2009, p. 537-544 .
- Lutz Milzer: The living will - a legal transaction with an expiration date? - . In: Neue Juristische Wochenschrift (NJW) . 2004, p. 2277-2278 .
- Lüder Meyer-Stiens: The narrating person - the narrated person. A theological-ethical investigation of the living will from the patient's point of view (= Edition Ethik . Volume 9). Edition Ruprecht, Göttingen 2012, ISBN 978-3-7675-7151-8 .
- Gabriele Müller, Thomas Renner: Supervision law and advance directives in practice . 5th edition. Heymanns, Cologne 2017, ISBN 978-3-452-28855-4 .
- Heike Nordmann, Wolfgang Schuldzinski: Living will: Health care proxy and care will. 18th edition. Consumer Center North Rhine-Westphalia e. V., Düsseldorf 2016, ISBN 978-3-86336-063-4 .
- Johann Platzer: Advance directives , helping to shape the end of our life: ethics, law and practice. ISBN 3-9502349-6-9 .
- Dieter Sturma (Ed.): Advance directives . Legal and Ethical Aspects ( Edition in the Life Sciences ). Verlag Karl Alber, Freiburg 2010, ISBN 978-3-495-48437-1 .
- Matthias Winkler: Preventive directives - living wills, power of attorney, care and organ directives (= Beck's model contracts . Volume 44). 5th edition. Beck, Munich 2016, ISBN 978-3-406-69160-7 .
- Martina Weber: 100 questions about living wills and euthanasia. Brigitte Kunz Verlag, 2010, ISBN 978-3-89993-759-6 .
- Living will. (PDF) In: bmjv.de. Federal Ministry of Justice and Consumer Protection (brochure; as of August 2019).
- Central precautionary register of the Federal Chamber of Notaries Filing of living wills , health care proxy and care will
- Christian patient care: through power of attorney, care decree, treatment requests and living will. Handout and form. In: ekd.de. German Bishops' Conference and Council of the Evangelical Church in Germany in connection with other member and guest churches of the Working Group of Christian Churches in Germany (there also as a PDF file).
- Power of attorney, care and living will - when relatives have to make decisions in an emergency. In: Deutschlandfunk . August 21, 2020.
Individual references / footnotes
- Yenilee Icagic: The Autonomy of the Patient Incapable of Consent , p. 104f
- Gabriele Müller, in: Beck'scher Online Comment BGB, Ed .: Heinz Georg Bamberger , Herbert Roth, as of March 1, 2011, § 1901a, Rn. 8th.
- Gabriele Müller, in: Beck'scher Online Comment BGB, Ed .: Heinz Georg Bamberger, Herbert Roth, as of March 1, 2011, § 1904, Rn. 6th
- Beatrice Brunhöber: Euthanasia from a criminal law and legal philosophical point of view . In: JuS . 2011, p. 401–406 (405) ("In principle, the patient himself is authorized to dispose of. Then his or her consent is important. However, if he is unable to give consent, for example because he is comatose, brain-damaged or mentally impaired due to age, the new §§ 1896 ff. BGB to be observed [...]. ").
- bill 3. BtÄndG. (PDF) p. 14 f. , accessed July 27, 2016 .
- Sascha Lanzrath: Living will and dementia . LIT Verlag, Münster 2016, ISBN 978-3-643-13444-8 , pp. 147 ff .
- Wolfram Höfling: The new living will law . In: NJW. 2009, pp. 2849-2852.
- Press release No. 136/16 from August 9, 2016. In: juris.bundesgerichtshof.de. Retrieved September 29, 2016 .
- : what will change after the decision of the BGH? - Nils von Bergner. September 28, 2016. Retrieved September 29, 2016 .
- Press release No. 185/18 from December 13, 2018. Retrieved April 9, 2019 .
- BGH ruling November 2018: A woman in a vegetative state may die. Retrieved April 9, 2019 .
- Gabriele Müller, in: Beck'scher Online Comment BGB, ed .: Heinz Georg Bamberger , Herbert Roth, as of March 1, 2011, § 1901a, Rn 9.
- p. 13 of the explanatory memorandum on Bundestag printed matter 16/8442 (PDF; 631 kB), quotation “The withdrawal of the living will can therefore also be made orally or through non-verbal behavior; it is only necessary that the change of will be expressed sufficiently clearly. "
- Lanzrath: wills and dementia . LIT Verlag, 2016, ISBN 978-3-643-13444-8 .
- Central ethics committee at the German Medical Association: Information and recommendations on dealing with health care proxy and living wills in everyday medical practice, as of October 25, 2018, p. A 2437.
- Asmus Finzen : Advance directives for mental illnesses . DGSP Hessen, 2009 online (PDF; 75 kB)
- p. 8, section A. 2. of the justification for the law Bundestag printed matter 16/8442 (PDF; 631 kB)
- Diehn / Rebhan, NJW 2010, 326, 327 f.
- Wolfram Höfling : The new living will law . In: NJW . 2009, p. 2849-2852 (2850) .
- v. Lewinski in NJW 2009, No. 39 p. III
- Federal Ministry of Justice: 2 BvR 1451/01 bundesverfassungsgericht.de
- living will: suffering disease dying. How do I determine what medical action should be taken if I am unable to make a decision? (PDF (323 kB)) (No longer available online.) June 2012, p. 9 , archived from the original on April 2, 2015 ; Retrieved January 16, 2013 .
- Ernst Karliczek: The Living Will Act . In: Hessisches Ärzteblatt . tape 70 , no. 12 , 2009, p. 791–794 , here p. 791 ( laekh.de [PDF; 916 kB ]).
- P. 3, Section B and P. 7–8 A 1. c) of the (later adopted) draft law Bundestag printed matter 16/8442 (PDF; 631 kB).
- LG Osnabrück, decision of January 10, 2020 - 4 T 8/20 - 4 T 10/20 = NJW 2020, 1687
- BGH judgment - millions of advance directives ineffective ( memento of December 30, 2018 in the web archive archive.today )
- Intensive care physicians recommend checking In: Ärzteblatt accessed on December 29, 2018.
- Free checking ofdirectives On: German Foundation for Patient Protection, accessed on December 29, 2018.
- Gabriele Müller, in: Beck'scher Online Comment BGB, Ed .: Heinz Georg Bamberger, Herbert Roth, as of March 1, 2011, § 1904, Rn. 6th
- Bundestag printed matter 16/8442 (PDF; 631 kB), p. 11, subsection A. 4 a) of the reasons for the corresponding draft law
- p. 15 Section 4 a) of the reasons for the law on Bundestag printed matter 16/8442 (PDF; 631 kB), citing BGHSt 35, 246, 249; 40, 257.
- Federal Medical Association: Recommendations of the Federal Medical Association and the Central Ethics Commission at the Federal Medical Association on the handling of health care proxy and living will in medical practice (PDF; 231 kB), Deutsches Ärzteblatt, Volume 107, Issue 18, May 7, 2010, pp. A 879-882 (Page A 879, right column above)
- Michael Kauch, Member of the Bundestag, Spokesperson for Palliative Medicine: Explanation of the various draft laws on living wills after hearing the Legal Committee in the German Bundestag (YouTube video, March 4, 2009)
- Ärzteblatt: aerzteblatt.de , June 26, 2009.
- German Foundation for Patient Protection ( Memento from December 6, 2013 in the Internet Archive )
- Wolfgang Lange: The Living Will Act - overview and critical appraisal - . In: Journal for Inheritance Law and Asset Succession (ZEV) . 2009, p. 537-544 (543) .
- Federal Court of Justice, XII. Civil Senate: Decision of March 17, 2003, file number XII ZB 2/03. (PDF; 166 kB) Federal Court of Justice, retrieved on June 19, 2009 (guiding principle decision (BGB §§ 1896, 1901, 1904)): "Guiding principles: a) If a patient is incapable of consent and his underlying disease has assumed an irreversible fatal outcome, life-sustaining or -extending measures are not taken if this corresponds to his previously expressed will - for example in the form of a so-called living will. This follows from the dignity of the human being, which dictates that the right to self-determination exercised in a state capable of consenting be respected even when he is no longer able to make independent decisions. Only if such a declared will of the patient cannot be determined, the admissibility of such measures is judged according to the presumed will of the patient, which is then to be determined individually - i.e. from his or her life decisions, values and convictions. b) If a carer has been appointed for a patient, he has to express and validate the patient's will towards the doctor and nursing staff on his own legal responsibility and in accordance with BGB. However, the carer can only effectively refuse consent to a life-sustaining or life-prolonging treatment offered by a doctor with the consent of the Guardianship Court. There is no room for the consent of the supervisor and the consent of the guardianship court if such treatment or further treatment is not offered by the doctor - be it that it is not medically indicated from the outset, no longer sensible or not possible for other reasons. The jurisdiction of the guardianship court does not result from an analogous application of BGB, but from an unavoidable need for the right to care. c) On the prerequisites for judicial legal training. " ; see. also the corresponding press office of the Federal Court of Justice: press release no. 52/03. Federal Court of Justice, April 10, 2003, accessed on June 19, 2009 (Federal Court of Justice for the approval of carer decisions by the guardianship court in connection with life-prolonging measures for patients unable to consent). as well as dejure under XII ZB 2/03 for further evidence)
- Federal Court of Justice, XII. Civil Senate: Decision file number XII ZB 2/03. (PDF; 166 kB) Federal Court of Justice, March 17, 2003, p. 1 [principle a)] , accessed on June 19, 2009 (links not in the original; cf. also the corresponding quotation for the reasons from p. 15 f .: "If there is such an expression of will, for example - as here - in the form of a so-called 'living will', it binds the supervisor as an expression of the continued right to self-determination, but also of the personal responsibility of the person concerned; because the dignity of the person concerned ( Art. 1 para. 1 GG ) demands that a decision made independently by him is still respected even if he has meanwhile lost the ability to make independent decisions. ”(Link not in the original)).
- Federal Court of Justice, XII. Civil Senate: Decision of March 17, 2003, file number XII ZR 177/03. (PDF; 30 kB) Federal Court of Justice, p. 4 , accessed on June 19, 2009 : “a) The artificial feeding carried out with the help of a gastric tube is an interference with the physical integrity, which therefore requires the consent of the patient (cf. Senate decision BGHZ 154, 205 = FamRZ 2003, 748, 750). Artificial nutrition carried out against the patient's declared will is consequently an illegal act, the omission of which the patient can demand analogously to Section 1004 (1) sentence 2 in conjunction with Section 823 (1) BGB. This also applies if the coveted omission - as here - would lead to the patient's death. The patient's right to determine his body makes compulsory treatment, even if it has a life-sustaining effect, inadmissible (Senate resolution, loc. Cit. 751). "
- Federal Court of Justice, XII. Civil Senate: Decision of June 8, 2005, file number XII ZR 177/03. (PDF; 30 kB) Federal Court of Justice, p. 8 , accessed on June 19, 2009 : “2. The Higher Regional Court - from its point of view logically - did not examine whether criminal prohibitions might prevent the defendant or its organs or staff from complying with the plaintiff's request for an injunction. The criminal law limits of euthanasia in the broader sense ("Help to die", cf. in detail BGHSt 40, 257), at which the plaintiff's request is aimed, do not appear to the Senate to be adequately clarified (on the level of opinion, for example: interim report of the Enquete Commission of German Bundestag, ethics and law of modern medicine. Living wills, BT-Drucks. 15/3700 p. 37 ff., 45). However, they are important for the decision of the present case; because the defendant cannot be sentenced under civil law to conduct with which the defendant's organs and employees run the risk of contradicting the requirements of criminal law. In view of the cost decision to be made here alone, the present proceedings do not offer a suitable framework for finally answering the question of these limits. The outcome of the present legal dispute was ultimately uncertain. The mutual cost burden takes this into account. " .
- Federal Court of Justice, XII. Civil Senate: Decision of March 17, 2003, file number XII ZR 177/03. (PDF; 30 kB) Federal Court of Justice, p. 1 (Heading a) , accessed on June 19, 2009 (Heading decision (BGB §§ 1896, 1901, 1904)): “a) If the supervisor, in agreement with the attending physician, demands that the artificial feeding of the patient who is being cared for, who is unable to give consent, is discontinued, the nursing home cannot counter this request with the home contract. Even the freedom of conscience of the nursing staff does not in itself justify the continuation of artificial feeding in such a case (following BGHZ 154, 205). b) If the legal dispute is settled through the death of the patient, the fact that the criminal law limits of euthanasia in the broader sense ("help to die") have not yet been adequately clarified justifies mutual cost cancellation in accordance with § 91 a ZPO. "
- (was inserted into the BGB by the third law amending childcare law of July 29, 2009 (BGBl I, p. 2286))
- Bundestag printed matter: page 8, item A. 2. of the justification for the law Bundestag printed matter 16/8442 . Ed .: Bundestag.
- Diehn / Rebhan: Diehn / Rebhan, NJW 2010, 326, 327 f. In: New legal weekly .
- Höfling: Höfling, The new Living Will Act in NJW 2009, p. 2850 . In: New legal weekly .
- v. Lewinski: v. Lewinski in NJW 2009, No. 39 p. III . In: New legal weekly .
- . Retrieved September 29, 2016 .
- BGH, judgment of November 14, 2018, Az .: XII ZB 107/18 = NJW 2019, 600
- Swiss Civil Code: (Adult protection, personal law and child law): Amendment of December 19, 2008. (PDF; 625 kB) Expiry of the referendum period: April 16, 2009. pp. 145 and 146 , accessed on October 6, 2011 .
- nArt. 372 para. 1 ZGB.
- Information sheet on living will, University Hospital Zurich: Information sheet on living will1 ( Memento of July 2, 2011 in the Internet Archive ) (PDF).
- EDI> BAG: Insurance card ( memento from April 6, 2016 in the web archive archive.today )