Since 1 June 2006, the prerequisites for and the effectiveness of advance health care directives (living wills) have been regulated by the Patientenverfügungs-Gesetz (the Living Will Act).
Advance health care directives (living wills) are oral or written statements by which the affected persons may for the future refuse certain kinds of medical treatments in the event of accident or illness. Thus such a person’s will is documented also if they should no longer be able to express their opinion, state their will or make decisions.
Advance health care directives (living wills) can only be drawn up by the affected persons themselves and not, for instance, by a custodian. When drawing up the deed, the persons affected must also be capable of reasonable and rational judgement and able to communicate.
There are two types of advance health care directives (living wills), namely the non-binding advance health care directive and the binding advance health care directive.
The non-binding advance health care directive (beachtliche Patientenverfügung) serves as guidance for doctors treating the person affected. It can be drawn up worldwide by the affected persons themselves. Doctors are, however, not strictly obliged to observe the content but have some room for interpretation as regards the treatment, provided in the context of the interpretation of the presumed will of the patient there is concrete and reasonable evidence that he/she might have wished for some other approach to be taken than is set out in writing in the advance health care directive. Persons who have drawn up such an advance health care directive are recommended to carry the deed with them.
The binding advance health care directive (verbindliche Patientenverfügung) must be observed by the doctors treating the patient. The establishment of such a deed is therefore governed by strict formal requirements. This provides the affected persons with the highest level of assurance that the provisions they have made in their advance health care directive will actually be observed. Thus it is only possible to establish the binding advance health care directive in writing and following prior medical consultation and counselling with a notary, lawyer or patients’ ombudsperson). This type of advance health care directive remains binding for five years unless the person affected defines a shorter period of time in the deed. It will only remain in effect for the respective longer period of time if it has been amended or renewed or in the event that or as long as the person affected has lost his/her ability to make a reasonable and rational judgement and to communicate.