Should a critical health condition arise—including those unfortunate cases where a person is declared to be in a "coma or vegetative state"—is the last will of a person who has manifested through a will their desires regarding the treatment and other decisions to be made about their health valid? The answer is a resounding no, because testamentary provisions are mortis causa in nature. That is, they govern after the testator's death, not while they remain alive.

Since 2022, the Advance Directives Law (Ley de Voluntades Anticipadas, Law No. 10231 and its Regulations) has been in effect. This statute seeks to protect the fundamental rights of legal-aged individuals by allowing them to express, in advance, in writing and unequivocally, their decisions regarding medical interventions and treatments they wish or do not wish to receive in the event of finding themselves in a grave medical situation where they cannot express their will. In this manner, third parties, relatives, and/or medical personnel will not be able to make decisions contrary to the patient's individual interests, thereby promoting care centered on the person's advance and real will.

The law establishes that a person's declaration of advance directives may never be interpreted as a form of euthanasia, and it may contain instructions regarding medical interventions, treatments, palliative care, and even the refusal to undergo certain procedures. Likewise, the directive may be modified or revoked at any time by the grantor, must be updated after a certain period, and is confidential. It is worth clarifying that an advance directive is strictly personal (personalísimo). Naturally, it would hold no effect whatsoever if a prospective attorney-in-fact were to execute "an advance directive on behalf of their principal."

The National Registry of Advance Directives (Registro Nacional de Voluntades Anticipadas), administered by the National Archives (Archivo Nacional), allows for the verification of the existence or absence of advance directives and facilitates limited access to healthcare centers. Furthermore, the regulation mandates that this declaration must be incorporated into the Digital Single Health Record (Expediente Digital Único en Salud - EDUS) to guarantee its availability and timely consultation by the person's treating medical personnel.

The Regulations develop the procedures and requirements necessary for the correct application of the statute, including the formalities, the actors involved, and the mechanisms for its proper registration and consultation. Likewise, various guidelines are established to ensure that the directives are fulfilled in accordance with best medical practices and the current legal framework.

A proper application of legislation in this matter strengthens individual autonomy and dignity regarding the right to health, promoting respect for individual decisions during critical moments. In turn, the treating physician must timely perform their due diligence prior to making definitive decisions.

At Facio & Cañas, we provide updated legal counsel, addressing your needs consistently with the regulations. For further information, you may write to svillalobos@fayca.com.