“I understand that death is a fact of life and I accept the end. However, I don’t want to suffer in the final moments of my life and I prefer to be with my family.” This is how the living will of São Paulo civil engineer Cláudia Baggio, 54, begins.
The creation of living wills, as the DAVs (Advanced Will Directives) are known, grew 235% in nine years, from 233 in 2012 to 781 in 2021.
In this document, the person expresses what their wishes are if they find themselves unable to make decisions about medical treatments for diseases in a terminal stage or with no prospect of cure – it is in it, for example, that someone can ask not to be resuscitated in case stay in a vegetative state, for example.
The state of São Paulo is the one with the most DAVs mined, going from 62 in 2012 to 586 in 2021, an increase of 845%. The survey was carried out by the São Paulo section of Colégio Notarial do Brasil.
Living wills have existed in the country since 2012, when the CFM (Federal Council of Medicine) published a resolution that details how these documents work and how physicians should act.
Baggio’s living will, made in 2021, cites the refusal of cardiopulmonary resuscitation and artificial respiration, among other medical procedures, if the engineer is diagnosed with an advanced and irreversible stage of terminal illness and dementia, a degenerative disease of the muscular nervous system and persistent vegetative disease where there is medical certainty of irreversibility.
She decided to make a living will after following the evolution of her father’s autoimmune disease for about two years.
“I have always been very independent and it causes me a little concern to have limitations. I decided that I would like to have a document that would protect me. So I looked for a lawyer”, he says.
The engineer says that she does not want to impose difficult decisions on her son and husband at a painful moment for the family.
Responsible for helping Baggio in the creation of the document, lawyer Claudineia Johnsson guides her clients to seek doctors who can answer questions about which treatments to include in their living will.
This is important, she says, to prevent one or more of the patient’s wishes from being overturned because of an error in wording. This is because doctors are not obliged to comply with wishes that violate the Code of Medical Ethics, for example.
The living will can be made in notary offices or privately, with the help of lawyers. Minors under 18 years old cannot do the document. .
In São Paulo, making a living will at a notary’s office costs R$512. Johnsson, on the other hand, charges from R$800 to R$1,800 in fees, in addition to the notary’s fees. Baggio’s cost R$1,200.
The person who makes a living will can appoint a legal representative to enforce his or her wishes, who must be named in the document. Once a DAV is made, the family is obliged to follow what the text points out and cannot ignore it. It is possible, however, to challenge it in court.
This type of process that involves health issues is usually processed on an urgent basis, according to Andrey Guimarães Duarte, vice president of the Notary College of Brazil, São Paulo section.
“If, during the course of the process, there is a disagreement between the family and a VAD of a patient who does not authorize, for example, the blood transfusion, life will probably prevail and, therefore, the transfusion will be done”, he explains.
The lawyer specializing in living wills Luciana Dadalto says that families usually respect the person’s will and that she has never heard of anyone taking the matter to court.
Despite the growth, she considers that the number of DAVs made in Brazil is still low due to. It also points out that part of this increase was caused by the Covid-19 pandemic. In 2021, the creation of the document registered a 41% increase compared to 2020.
“We know we’re going to die, but we don’t think about it too much. The pandemic brought this reality in a brutal way and we had to deal with it. We started to think better about how far people need to go to try to save us”, says Johnsson.
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