Advance Directives for Medical Decisions of Older Adults With Disabilities


By: Dr. Luz Eneida Saldaña, attorney, Universidad del Rosario, specialist in Administrative Law and Financial Law.

Law 1996 of 2019, "ESTABLISHING THE REGIME FOR THE EXERCISE OF LEGAL CAPACITY BY ADULTS WITH DISABILITIES," addresses one of the support measures available to people with disabilities, known as an Advance Directive.

What is an Advance Directive? It's a statement of will made in advance by an adult, anticipating their own possible future incapacity — an irreversible coma, a terminal condition — setting out guidelines and instructions on medical, personal, family, and legal matters. It takes the form of an advance directive, which must be executed through a notarized deed or conciliation record, and is binding as long as it isn't unlawful.

Separately, Law 1733 of 2014, "REGULATING PALLIATIVE CARE SERVICES FOR THE COMPREHENSIVE MANAGEMENT OF PATIENTS WITH TERMINAL, CHRONIC, DEGENERATIVE, AND IRREVERSIBLE ILLNESSES AT ANY STAGE THAT SEVERELY IMPACTS QUALITY OF LIFE" — known as the Palliative Care Law, or the Consuelo Devis Saavedra Law (named for a woman who spent 14 years in a coma) — regulates the right of people with terminal, chronic, degenerative, or irreversible illnesses to receive palliative care that improves quality of life for patients and their families, and gives patients the right to voluntarily and in advance decline unnecessary medical treatments that don't meet proper therapeutic standards or fail to preserve a dignified life, as well as the right to decide whether or not to donate their organs.

That law defines the concept of terminal or degenerative illness and establishes palliative care for pain and symptom management, requiring "medical, social, and spiritual support, along with psychological and family support, through the illness and through bereavement." It also set out the rights available to patients with terminal, chronic, degenerative, or irreversible illnesses that severely impact quality of life: the right to palliative care, to information, to a second opinion, to execute an Advance Directive document, and to actively participate in the care process and in palliative-care decision-making.

As for the rights of children and adolescents: for a patient under 14, these decisions are made by the parents or the person responsible for their care; between ages 14 and 18, the patient is consulted directly about the decision they want to make. As for family members' rights, when an adult patient is unconscious or in a coma, the decision on palliative care falls to their spouse, adult children, parent, or another close relative.

In compliance with this palliative-care framework, the Ministry of Health and Social Protection issued Resolution 2665 of 2018, defining the requirements for the Advance Directive Document (DVA), which repealed and expanded on Resolution 1051 of 2016 and partially implemented Law 1733 of 2014.

In other words, people covered by these laws can decide the kind of palliative care they wish to receive — for example, whether they want to be sedated or undergo certain procedures, whether they want family present, and whether to spend their final moments in a hospital or at home — guaranteeing the exercise of personal autonomy through free, conscious, and informed decisions to refuse medical treatment, to avoid inhumane or cruel treatment that undermines their dignity, or to avoid being forced to endure avoidable suffering, as set out in article 10 of Statutory Law 1751 of 2018. If you need advice on a case like this, contact us by clicking here.

So, any person — healthy or ill — who is legally and mentally competent, anticipating that some circumstance may leave them unable to express their wishes, can state in advance that they do not want to undergo certain unnecessary medical treatments or procedures meant only to prolong life, or to extend life through artificial means when there's no reasonable hope of recovery — in other words, to express their preferences about their final days according to their religious or personal beliefs. This is recorded in the document known as the DVA.

The DVA seeks, at all times, to protect the person's dignity and ensure their final wishes are honored — an expression of the right to freely develop one's own personality, exercised autonomously, responsibly, freely, spontaneously, and consciously in deciding whether to undergo unnecessary medical treatments or procedures intended only to prolong life.

This document can be modified, replaced, or revoked at any time, as long as the required formalities are followed, and only by its author. Healthcare providers must always ask whether an advance directive or living will exists if none is found in the medical record, and the National Health Superintendency must always ensure the patient's wishes are honored.

To execute the declaration — which is possible starting at age 14 — the person making it must have full legal and mental capacity. Someone between 14 and 17 may execute a DVA, but must replace it with a new one reflecting their wishes once they turn 18.

What the DVA must include: full name, identification, and a clear, specific statement that the declaration is made with full mental capacity and free of any coercion; confirmation that the person has been informed of the implications of the declaration; a clear, express, and unambiguous statement of their preferences regarding future healthcare and physical integrity; specific instructions for their care and end-of-life preferences; and their signature (if they cannot sign, two witnesses or a family member may sign on their behalf).

Depending on the circumstances, this document must be executed:

• Before a notary public, via a notarized deed either at the notary's office or with the notary assisting at the person's home — and this method's validity cannot be conditioned on the other two forms below.
• Before two witnesses, who must sign the document with their full names and ID numbers.
• Before the treating physician, who signs with their full name, ID, and medical registration number, with no other witnesses required.

The DVA must be attached to the patient's medical record and must be honored in full, the same way a will is respected. Anyone who administers or becomes aware of its contents must keep that information confidential. If you need advice on a case like this, contact us by clicking here.

At Consejurídico, #WeWantToBeThere

SOURCE: RESOLUTION 2665 OF 2018, MINISTRY OF HEALTH

LEGAL CAPACITY HANDBOOK FOR PEOPLE WITH DISABILITIES — MINISTRY OF JUSTICE

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