Never too early (2)

In my column last week, I talked about the importance of planning ahead with wills and advance directives. Everyone knows what a will is, but awareness of an advance directive is still low.

Let me explain what it is, as defined in Section 10 of the implementing rules and regulations (IRR) of Republic Act No. 11036 or the Mental Health Act, signed into law in June 2018 and the IRR following in 2019.

The definition in Section 10 of the IRR reads: “A service user may set out his or her preferences in relation to treatment through a signed, dated and notarized advance directive executed for the purpose.”

Hospitals usually have the form, which asks for specific instructions. For example, there is a DNR (do not resuscitate) directive: If the heart stops beating, do you still want cardiopulmonary resuscitation? The directives can be very detailed for other medical interventions: continuing nutritional support, water, medicines.If you don’t leave advance instructions, the hospital will ask the closest next of kin if he or she wants to fill out those instructions, and that can be very difficult.

For years before they died, both my parents said they didn’t want “dramatic” or “artificial” forms of life support if their situation had become “hopeless,” but we never got around to working on the advance directives.

My father died in his sleep, so there was no need for advance directives. My mother’s eight years of dementia meant many emergencies, but I kept postponing on advance directives until one night, when she was rushed to the emergency room and her heart stopped. I was not around and there was no advance directive, so the ER staff revived her.

I was finally contacted and when I got to the hospital, I knew it was time. Filling out the advance directive was one of the most difficult tasks I ever had to handle in my life. She passed away two hours after we left the hospital, right as we arrived home.

We tend to postpone wills and advance directives, arguing we’re still young and “let’s face it” with a tinge of the superstitious, afraid of dealing with our mortality. But it’s never too early, because we just never know when it’s time, and if we are still of sound mind.

Note that the traditional “being of sound mind” introduction to a will is slowly giving way to “being of disposing mind and memory,” which is defined as having “the mental ability to understand in general what one owns, one’s family relationships, and the meaning and effect of the will at the time it is being made.”

That’s asking for a lot more.

The other week, I was in a discussion panel at the Philippine Neurological Association convention, where we talked about mental competency. Dr. Patricia Syson, who is both a physician and a lawyer, had a very informative presentation where she pointed out that the law tends to presume that a person who executes a will (and now, we will presume, an advance directive), is “competent.”
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Look at this excerpt from a legal decision she shared, which could have come from a romantic novel: “If the two eventually fell in love, despite the disparity in their age and academic levels, this only lends substance to the truism that the heart has reasons of its own which reason does not know.” (Chua-Qua vs. Clave and Tung High School, Inc.)

Another decision, around a disputed contract, challenges a popular misconception: “Forgetfulness is not equivalent to being of unsound mind.” (Baltazar, et al. vs. Laxa).

Another dispute around property inheritance: “To constitute a sound and disposing mind, it is not necessary that the mind be unbroken or unimpaired or unshattered by disease or otherwise. (Ortega vs. Valmonte)

And now the Mental Health Act states unequivocally, in relation to consent for treatment: “All persons, including service users, persons with disabilities and minors, shall be presumed to possess legal capacity for the purpose of this Act or any other applicable law, irrespective of the nature or effects of their mental health condition or disability.”

Ideally then, we should draw up wills and advance directives together with people we love and trust, the earlier the better. Remember, you can still change the will and advance directives any time, and if you no longer trust, or love, the ones you first designated, then make sure you have enough confidence about your own “sound and disposing mind.”

Leave things to chance and the only ones who will profit from all the disputes will be the lawyers.

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