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Advance Care Directives ('Living Wills')

An advance care plan can include an advanced care directive. Advance care directives are also sometimes known as ‘living wills’. The purpose of advance care directives is for the maker of the directive to inform his/her healthcare providers and next of kin of his wishes with regards to his healthcare should he lose the capacity to make and/or convey the same. This helps ensure that a patient’s autonomy is respected as much as possible. The same concept is linked to consent – advance care directives could also be seen as a way of consenting ‘in advance’.

Advance care directives are NOT the same as euthanasia, which is essentially making the choice to end one’s own life. As medical science improves, medical professionals are now able to prolong life even where death is imminent and inevitable. When you are competent and well, you are able to discuss your health care and treatments with your healthcare providers, and make your own decisions regarding your treatment. However, when you lose the ability to communicate, you lose this freedom to choose. Therefore, you may wish to make an advance care directive to express your wishes regarding your health care. This is why advance care directives are also sometimes known as ‘living wills’.

Having an advance care directive would allow you to set out, in writing, what treatments you would and would not be willing to endure, and allow you to speak for yourself when and if you lose the capacity to communicate with my healthcare providers. It would also serve as a guide for your family who would be tasked in making such difficult decisions on your behalf.

An advance care directive is likely to be able to prevent or at least minimise the disputes between them as your wishes would be clear. In your advance care directive, you may state whether or not you wish to be resuscitated if your heart stops beating, whether you want all possible treatments to be tried and exhausted until you die or if you wish only for palliative care to be applied if death is already inevitable and imminent. These are just some examples of what an advance care directive can set out.

While Malaysia does not currently have any legislation providing specifically for advance care directives, it is recognised in the Malaysian Medical Council’s guidelines that where there is an advance care directive, a medical practitioner should refrain from providing treatment or performing any procedure which has been explicitly rejected by the patient in their advance care directive under such circumstances. However, if an advance care directive sets out something illegal, it cannot be applied. For example, euthanasia. The medical/healthcare provider will also have to consider whether or not the advance care directive was made in contemplation of such circumstances that apply at the time treatment is being proposed. If the medical practitioner believes that the advance care directive is not sufficiently clear or that the maker of the advance care directive was under undue pressure at the time of making the advance care directive, he may treat the patient in accordance to what he believes is in the patient’s best interests and/or seek directions from a court on how to proceed.

Thus, if you wish to make an advance care directive, you should ensure that it is clear and specific. We can assist with drafting advance care directives, and providing practical advice on negating common points of dispute. For example, if the maker’s mental state at the time of making the advance care directive may be called into question later, the maker should obtain confirmation from a duly qualified medical professional that he is competent to make such a directive.

As with conventional wills, there is no registry or register for advance care directives in Malaysia. Therefore, in order for your directive to be enforced, you should inform those responsible for your healthcare such as your primary care physician, and also your family members, that you have made such a directive. You may also wish to provide them with a copy of it and discuss your wishes therein with them. It is also important to note that you may change, amend or revoke your advance care directive at any time.

If you are interested or contemplating making an advance care directive, please do not hesitate to reach out to us for a consultation. We hope that this article has provided some insight into the use and applications of advance care directives.

*This article is for informational purposes only and is not intended to provide legal advice.

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