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10 March 2021
An advance healthcare directive is also known as a 'living will'. Although not a new concept, it is newly recognised in the Cayman Islands.
In 2019 the Health Care Decisions Act was implemented in the Cayman Islands. This law allows individuals to determine their wishes surrounding medical care and treatment, including end-of-life care, should they become mentally incompetent, and prepare a legal document to this effect. The legal document outlines preferred medical treatments and procedures, such as life support and resuscitation.
Advance directives have been around for some time in other jurisdictions, including the United Kingdom, the Unites States, Australia, Canada, South Africa and Jamaica.
An advance directive is a legal document, referred to as an 'advance healthcare directive'. A person must be 18 years or older and mentally competent to make an advance directive. The form must be signed in the presence of a doctor, who will witness and sign the form.
The form must be signed in the presence of a doctor to ensure that the directive maker:
The directive allows the directive maker to appoint a proxy to make healthcare decisions on their behalf in accordance with their wishes.
Once a directive has been executed, the maker should:
Unlike a will, an electronic copy of an advanced healthcare directive is valid and legally binding. A picture of it on the maker's phone or in an email or a copy of it in their medical records will be sufficient.
If an individual changes or revokes their directive, all previous copies should be removed and the relevant persons should be notified.
It is critical for directive makers to bear in mind what a directive can and cannot do. An advance healthcare directive allows the maker to decide what they would like a physician to do in the event that they become mentally incapacitated or otherwise unable to communicate their wishes.
To that end, a directive will take effect only once the directive maker is deemed to be mentally incompetent. Like a will, a directive can be revoked at any time while the directive maker is mentally competent.
In the Cayman Islands, an advance directive does not authorise euthanasia or assisted suicide.
Several legal questions surround this relatively new law. These include questions about:
Luckily, the drafters of the law anticipated some of these questions and issues and adequately addressed them within the framework of the law.
As regards the first question above, by operation of Section 16 of the Health Care Decisions Act 2019, while a directive is operative, it prevails over any right of an attorney of the directive maker or of the directive maker's nearest relative.
The Power of Attorney Act (1996 Revision) provides that an instrument created under this law is not an enduring power of attorney, which means that once a person is incapacitated, such instrument (known as a 'power of attorney') is no longer valid.
For further information on this topic please contact Samantha Conolly at Ogier by telephone (+1 345 949 9876) or email (email@example.com). The Ogier website can be accessed at www.ogier.com.
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