The Star: Thy will be done

This story first appeared in The Star newspaper on 08 October 2018

Thy will be done

Law & Realty and Carolyn Oh Li Lin

This is the second in the series of monthly articles contributed by the Malaysian Bar Council on simple matters affecting the lives of people. It kicked off diving into ways to obtain “Letters of Administration” when a person dies and leaves an estate without a will and continues this month with the subject on “Living Wills”.

CHERISHING control and having the independence to do things our way ring true for most people. This spans our lifetime from when a child manages to tie his own shoelace to how one decides to spend one’s hard-earned monies and how and where we choose to live.

However, our ability to always be in control is affected by the inevitability of aging and the fact is dying is not always a swift process. One should be concerned about end-of-life planning.

Each of us would at one point or another of our lives have thought about what happens when we are unable to make decisions for ourselves in matters that concern our health and finances.

This article is written in the hope of promulgating awareness of the need of legislation to enforce “Living Wills” and its related proxy designation which together will enable a medically incapacitated person’s wish(es) to be heeded and enforced, that is, one’s contemplated will to be carried out.

The living will is to be differentiated from a regular will which deals with our wishes and assets after our death.

The current laws guiding the creation of regular wills do not take into account the importance of a holistic approach to end-of-life planning. The living will is simply a form of advance directives wherein a person expressly dictates ahead of time before he or she is unable to do so. Given that these directives are to be implemented whilst the person is still alive hence … the living will.

There is also a taboo that end-of-life planning meddles with the natural course of life and, even more sensitively, touches on euthanasia. Whilst the subjects are admittedly intertwined it must be clarified that advance directives are not only with regard to health and medical matters.

Advance directives are meant to broadly cover instructions relating to important matters such as:

1. Assets/funds available and access to them

A review by the Age UK in October, 2017 suggests that a great number of vulnerable people over the age of 65 suffers from financial abuse and sadly the report identifies family members as being the most likely to be the abusers whereas another 30% of abuse are by friends and carers.

2. Accommodation/living arrangements

It is a sad day when an older and vulnerable person who had previously worked so hard to live well and has a comfortable house is then in his or her later years moved to a home for the elderly simply because no advance directives were recorded to ensure that the said person’s preference is carried out. Most, if not all, elderly people prefer aging in the comfort of their homes.

3. Health and medical care and decisions

The directive regarding health and medical matters are admittedly paramount in considering a living will and such directives can be as specific wherein certain medication, methods and particular medical machineries are either mandated or specifically disallowed or as general as the maker wishes it to be where in the latter case the person would dictate that any life sustaining measures that would serve only to prolong inevitable death rather than to prolong life (sans quality) is to be withheld or discontinued.

In the United Kingdom, the Mental Capacity Act, 2005 expressly allows the drawing up of a lasting power of attorney which is divided into two areas: (a) personal welfare which is akin to item 3 above; and (b) property and affairs which is akin to items 1 and 2, which shows that advance directives are meant to cover diverse areas and do not only pertain to end-of-life scenarios.

Many countries have already embraced the need to dignify life by enabling a path to a dignified death. This would include amongst others the United States of America, Switzerland, Canada and most recently Jersey through its Capacity and Self Determination (Jersey) Law 2016 which came into force on Oct1, 2018.

The year 2005 also saw England and Wales refine their laws under the Mental Capacity Act 2005 which Singapore promptly emulated in 2008. In March 2018, the Indian Supreme Court permitted living wills and passive euthanasia following the infamous Aruna Shanbaug case where in 2011 passive euthanasia was sanctioned by the Indian courts for Aruna, a nurse who had been raped and assaulted so brutally that she remained in a persistent vegetative state for 42 years.

It is, however, important not to be distracted to think that the living will is about empowering the ability to take one’s own life but rather it is about the ability to manage one’s own end-to-life, a subtle but significant difference. Malaysia is a growing but ageing society. We are in need of laws focused on end-of-life planning.

Until laws are in place, we are left merely with a realisation which cannot be expressed nor impressed on third parties unable to have our wishes/will legally carried out.

We should start today by accepting our mortal life and the fact that we will indeed grow older and be more incapable. At most what we can do is to ensure that we have a steady crutch forged from our own will and expressly recorded. We owe ourselves a graceful exit.

The writer, a lawyer practising at Messrs Carolyn Oh & Co, Penang, is a member of the Conveyancing Practice Committee, Bar Council, Malaysia. This column does not constitute legal advice.

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