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Why having a living will is crucial.

In a "regular" will, one generally describes how assets should be divided upon death. What should happen to your assets, though, if you haven't passed away yet, but you're merely not able to make decisions concerning your assets? This could be the case if you're in a coma due to an accident or if...
Why having a living will is crucial.
Finance: Why having a living will is crucial.

Author: Joep Ertem, LL.M.

As a deputy civil law notary from an internationally oriented firm, Joep provides his clients with advice on a wide range of legal subjects. He specializes in the drawing up of (living) wills and setting up tax plans in order to avoid unnecessary burdens, as well as advising international clients on matters where family law and real estate law overlap. His goal is to create and maintain a bond of trust with his clients, which he considers a necessity to come to the right solution to legal problems.

Why having a living will is crucial.

In a "regular" will, one generally describes how assets should be divided upon death. What should happen to your assets, though, if you haven't passed away yet, but you're merely not able to make decisions concerning your assets? This could be the case if you're in a coma due to an accident or if you're abroad for a while. Make a living will in which you have appointed a legal representative if financial or medical decisions have to be made for you in such cases.

What is a living will?

In the Netherlands, a living will is a notarial deed that includes two powers of attorney; one deals with financial affairs, whereas the other one relates to personal and medical desires. It is, thus, a document made by a Dutch notary in which you grant certain powers to a person also mentioned in it. 

The appointed person (your representative) will be in charge of your financial and medical affairs under the conditions as mentioned in the living will. You could, for example, grant these powers to your representative under the condition that you are declared to be legally incapable by a qualified physician of handling your own affairs. It could, however, also be a document you make in case you decide to temporarily move abroad.



Your representative is your confidant(e)

Naturally, the person you appoint as your representative should be somebody you trust. You may namely not be able to be informed by your representative of the activities undertaken in your name. It is, therefore, important to choose somebody who will likely use the powers you grant solely for your own good. I should also note that there are two ways to ensure that your representative always acts as such. 

Firstly, an obligation to keep records of activities your presentative performs is usually included in the living will. The presentative must inform you as soon as possible of these activities and render an account to you. After your death, your representative must inform your heirs of these activities and render an account to them.

Secondly, a supervisor may be appointed by you as well. Your representative must render an account if you’re unable to exercise supervision.

 

Medical desires

Quite often, the reason why individuals make a living will is to have their medical desires realized in case they themselves aren’t able to make any decisions anymore. These don’t just pertain to the question what kind of treatment you want, but also to matters concerning the non-performance of a treatment and euthanasia.

You could have these issues also included in your living will, but it is sensible to always inform your doctor of your desires as well. As medical professionals are always under public scrutiny, doctors must also act with all due diligence. It is, therefore, of utmost importance that they are aware of your wishes.

Aside from this, you will also have to confirm every once in a while to your doctor that these desires still apply.





Issues abroad

It’s possible that you have already made a document in your home country that deals with the same kind of matters as a Dutch living will does. You may have made an Advance Medical Directive, for instance. 

Once this document has to be used as described by you, the Dutch notary may have to ascertain whether it’s valid and applicable here. This is usually determined on the basis of the law you’ve chosen to be applicable in the document or international regulations. To ensure that there are no hurdles to, it is recommended to make a living will in the Netherlands as well. This could be a living will that is complementary to the existing document. For practical reasons, however, it could be better to make a Dutch living will that simply replaces any powers of attorney you’ve issued in the past. 

You may also state in your living will that it merely aims to have your assets administered that are located abroad. As explained above in relation to foreign living wills to be used here, the same process may have to be followed abroad. It will, namely, have to be determined whether the Dutch living will is valid and can be applied in the other country.

 

Leave your affairs in safe hands

In conclusion, it is sensible to make a living will, as you would prevent any doubts from arising in the future concerning medical decisions to be made on your behalf. This also applies to management issues relating to your assets, if you should go abroad for a while. 

As an internationally oriented notary firm, we can guide you in this matter.

Please contact us for more information and expert legal advice!