A relatively young and generally healthy person has been diagnosed with a serious illness, his physical condition has deteriorated rapidly, and he has been diagnosed as terminally ill. Can he insist on staying at home during his final days and not spending those days in the hospital? Can he, despite being terminally ill, make decisions that will be implemented when his mental condition also deteriorates? And no less important, is it possible to change the decision not to prolong life, for example, as long as he is unconscious and then treatment that was not possible before will be possible?
In 2005, Israel enacted the “Third-Death Patient Law,” which “is intended to regulate the medical care of a dying patient while striking an appropriate balance between the value of the sanctity of life, the value of the person’s autonomy of will, and the importance of quality of life.” [1] The law allows a person to determine in advance what medical procedures he or she agrees to have performed on his or her body at the end of his or her life, when he or she is no longer capable of making decisions. This allows for both respecting the person’s will and preventing the need for difficult decisions to be made by family members or for the person to go to court. However, in many cases people do not prepare for such a situation in advance, and so, for example, in August 2023, the Safed court rejected a request submitted by a hospital to perform an urgent and invasive medical procedure on a woman who was anesthetized and on a ventilator despite the opposition of her family members. Because the woman had not signed a durable power of attorney or medical instructions, the family members were forced to ask the court to appoint her husband as a temporary guardian to represent her, claiming that her clear wish before the surgery was not to be a nurse and not to be connected to a ventilator.
The solution to such cases is to sign a durable power of attorney (with the assistance of a lawyer with specific training for this) and appoint in it someone who will be authorized to make decisions on matters that will be defined in advance, in a situation where the person is no longer competent to make decisions . A durable power of attorney allows flexibility in making decisions according to the circumstances by providing advance instructions on both property and medical matters and may prevent a person’s final days from becoming a family soap opera .
Contrary to what many people think, even a person who is defined as a terminally ill patient may still have the capacity to make decisions and is therefore entitled to sign a durable power of attorney and even a will (in which case it is desirable that the will be notarized, to strengthen its validity) and thus to anticipate and establish rules for how his life will be conducted when he loses his capacity and is determined by a competent authority to have lost the ability to judge, and also to deal with the arrangement of his property after his death and to prevent family disputes. This is doubly important when that person is still active in managing a business and it is important to ensure that the loss of consciousness (temporary or permanent) will not cause the death of the business before that person passes away .
It is important, when drafting a will or an enduring power of attorney, to be accompanied by a lawyer (and in the case of a will, also a notary) with experience in such situations, who will be able not only to draft documents that are appropriate to the unique needs of this situation, but also to work in cooperation with the medical entity (including in a home hospice situation) to ensure minimal disruption to the person in their condition and to draft the documents in a way that will not be later invalidated by the court.
[1] The Terminally Ill Law, 5766-2005, Section 1
