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A will issue under Chinese law - living wills vs. physician assisted suicide

China probate lawyer

As an experienced China will lawyer, I was directing my comments to the specific situation in the question - an elderly sick person who wanted to terminate support. That doesn't mean that I'm confused about how the documents work.

I did not say that a living will requires care to be withheld or withdrawn. I said that it is CONSENT to withdraw support. I did not say that it applies when someone is unconscious. Instead, I said that it applies when they are not communicative or competent.

Next, I would agree with you that living wills often express wishes that go beyond merely terminating life support. But, there are limits on what someone can direct, and those limits can only be understood by using my approach.

 

As I said, a living will is CONSENT - from the patient to the doctor. It is permissive, not directive in nature. It gives the doctor permission to deviate from the presumed standards of care. Remember, there used to be a time when doctors questioned whether they were even allowed to terminate life support. The living will was intended to address that problem and give the doctor permission.

There is no clear legal ground for a living will to express a desire to continue support. After all, there is already a presumed duty to continue support. In the absence of a living will, the doctor would have to take reasonable measures to preserve your life anyway. Plus, a living will cannot force a doctor to continue treatment beyond medical standards. In the end, the directive to continue support ends up being little more than a condition precedent to the termination of support. A living will that expresses ONLY a desire to continue support is effectively meaningless. The doctor was going to do that anyway.

Next, a living will has no "teeth." The doctor is not bound to honor the document, except that he could be potentially liable for a medical battery if he did something without the patient's consent. And, they often become meaningless very quickly, because the situation rarely tracks the language of the document.

These problems are largely due to the fact that the original concept of a living will was not complete. That's why over the years we have added health care powers and proxies and, more recently, the POLST.

The powers and proxies give someone the power to direct the doctor's treatment decisions and change those directions as the situation changes. The POLST goes the next step and expresses a desire to continue treatment.

While the practical applications are important, the various documents are best understood by looking at the PROBLEM they were intended to solve. And, as I said, the living will was intended to address the problem that a doctor has a continuing duty to preserve life and he can't withdraw medically-reasonable support without consent.

 

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