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FEATURE |
Growing Old Gracefully
This is a commentary on wills and the Advance Medical Directive pertaining to the elderly.
Age brings wisdom to some, ailments to most and certain end to all. Here we consider some of the ways in which we may help ourselves to order our lives and estate as we age, perhaps become unable to communicate our wishes, and eventually depart.
We toil from dawn to dusk. We strive to keep our affairs in as much order as possible. We organise our lives, and, sometimes, even the lives of those around us. These would, we rationalise, minimise inconveniences as life progresses.
How many of us stop to think what would happen if our presence was abruptly removed from the scene? Although not a pleasant prospect, the fact remains that we do not have control over everything: anything may happen to anyone at anytime.
What would life be like for our loved ones after our life ends? It will be painful for the next-of-kin. After the grieving comes under control, the show must go on, as it were. As the loved ones try to sort out the affairs of the dearly departed, grief may mutate into pain of a different sort. Here is the story of a person who dies domiciled in Singapore with movable and/or immovable property in Singapore.
If the deceased person did not have a Will, the first issue arises: Who will take on the tedious responsibility of administering his estate? The job is an unenviable one. It would entail making the necessary applications to Court, gathering his assets, paying off his debts, and distributing the balance of the estate to those who are entitled, by law, to take. Thankfully, estate duty clearance has now become a thing of the past. Even so, it is a mean task, no less; but who will undertake it?
The law sets out a certain order of relatives who are entitled to take on the job of administration. If a person whom the law has named refuses to do it, or is unable to do it, someone else may then undertake the job. However, that first-mentioned person must first renounce his or her right to do so, and, thereby, clear the way for the willing party. Once we have found the man for the job, he is called the “Administrator”.
After appointing the Administrator of the estate, the lawful beneficiaries must then be identified. Once again, the law sets out the order of beneficiaries who may partake in the estate of the deceased person in the Intestate Succession Act (the “Act”) (Cap 146). For instance, if a person dies leaving behind a spouse, but without any children or parents, then the spouse will take all of his estate. If there are children and spouse surviving, then the spouse takes half, and the children will share the other half equally amongst themselves. If he or she leaves no issues, but only spouse and parents, then the spouse will take half the estate, and the parents will share the other half. There are other combinations of beneficiaries and their entitlement in the Intestate Succession Act.
In certain circumstances, a beneficiary who was a child of the deceased, or a brother or sister of the deceased, is entitled to take a part of the estate of the deceased person even if the beneficiary had already passed away. The Act also states that those related to a person deceased by the half blood shall rank immediately after those of the whole blood related to him in the same degree.
The sum total of the above situation may be that the deceased person’s estate may not benefit the persons that he himself might have wished to benefit. It may even pass on to persons that he may never have anticipated!
Much of the anguish and misgivings amongst the loved ones left behind may be avoided if the deceased person had written a Will.
So what is a Will? It is exactly what it says – what you will want for the distribution of your properties after your demise. A Will is a formal instrument that gives effect to your wishes. It simplifies many matters for your loved ones after your departure. Let your Will be known and executed without delay.
Can a person draw up his own Will, with the guidance of the wealth of information that is freely available in the public domain? Of course, he may. I will place just one caution on that effort – please make sure that the document you draw up on your own be valid, because if it is not, and your beneficiaries find that out after you have departed, then it will be as good as having made no Will at all. The good intentions of the dearly departed would have been sorely thwarted then!
If you are advanced in age, and wish to make a Will, it is prudent to have a doctor certify your mental capacity at the time of your execution of the Will. This is not to say that you must have suffered any mental incapacity or challenges prior to the execution of your Will. Neither is this a requirement at law. It merely makes the lives of your named beneficiaries easier, in the event that your Will is contested by anyone at all. You know that you are in full control of your mental faculties at any one time. However, it may not stop a third party from claiming that you had suffered from some incapacity owing to your age, or past illnesses, or any such causes. If such a contest occurs, remember that you would not be there to argue your case, and a simple endorsement by a qualified medical practitioner would prevent such claims quite easily.
When a person becomes terminally ill with an incurable disease, and death is imminent, a dilemma can arise. Medical sciences have made great advances. With the aid of external equipment such as respirators and feeding tubes, and with procedures such as cardiac resuscitation, a person’s organs may be kept going. The difficult question then arises: When it is certain that the process of dying has set in, should these be continued, and/or how long should these be continued? The person has gone unconscious, and is unable to express his or her own wish. Many of us would immediately recall the Terri Schiavo case in the United Staes, where 26-year-old Terri collapsed after suffering a cardiac arrest, and never regained consciousness. Terri’s husband and parents were locked in legal battles over her medical care. Fifteen years later, she was allowed to die, at the age of 41.
How many of us would like to put our loved ones through such a difficult ethical struggle? Now, we have an option, although a very limited one, to let the doctors know if we do not want to prolong the agony. The law governing this area is known as the Advance Medical Directive Act.
The Advance Medical Directive, “AMD” for short, only comes into play when a person is “terminally ill”. If a person were terminally ill because of injury or disease, then death would be imminent. Applying extraordinary life-sustaining treatment would only postpone the moment of his death. This is after the stage where he/she would have been on palliative care. During the palliative care stage, medical assistance is given to alleviate his/her pain and to make him/her as comfortable as possible. It is when the dying process begins that this question arises: How long does one prevent him/her from dying using artificial medical aid?
That is the situation when AMD would help – if he had made an AMD, the doctors would respect his/her wishes not to have extraordinary life-sustaining treatment. His/her wishes would be respected even if his/her loved ones objected.
So what exactly is an AMD? Should you have one? Can you have one?
When a loved one is dying, and the option of keeping him/her “alive” on life-sustaining equipment is available, would you not agonise over whether or not to “pull the plug” on him/her? Should you prolong the process of dying?
Therefore, AMD is your directions to the doctors who would be treating you if, and when, you should slip into a state where you would require extraordinary life-sustaining equipment to be kept alive. It is at that stage that the doctors will look to see if you had made an AMD. You would not be able to communicate your wish to be not placed on such equipment when you are in that state, ie, terminally ill and unconscious. That is why it is made before that happens, and, so, it is called an “Advance” Medical Directive.
Can you make an AMD? You can, if you are 21 years of age or older, and you are of sound mind. Parents or guardians are not allowed to make an AMD on behalf of their children who are below 21 years of age, and for good reasons, too.
How can you make an AMD? Must you consult a lawyer? It is a legal document; however, you do not need to consult a lawyer to draw it up. You can get the AMD form online, or from your neighbourhood doctor, or doctors in polyclinics. You must make your AMD through a doctor. The doctor will ensure that you are not forced to make the AMD, and that you understand the nature and consequences of making an AMD. There must be two witnesses to your signature on the AMD, and at least one of them must be a doctor. These witnesses must not benefit from your death. A doctor or other witness who is your relative (who might stand to gain under the laws of Intestacy) or who is one of your beneficiaries under your Will or your insurance policies cannot be a witness to your AMD.
One of the duties of the doctor who witnesses your AMD is to ensure that you understand the full impact of the AMD document that you are about to sign. Therefore, even a person who is illiterate cannot be misled into signing an AMD without knowing what it does. If someone forces you to make an AMD, or tries to mislead you into making one, then that person will be guilty of an offence. He or she may be fined up to $10,000, or sentenced to imprisonment for up to three years, or be subject to both such fine and imprisonment.
How much does it cost to make an AMD? Your doctor, who will also be one of your two witnesses, has the duty to explain the AMD to you, and to ensure that you understand what it does. You will have to check with your doctor how much these services will cost. However, the AMD Form 1 itself is free. You can download it from the Ministry of Health (“MOH”) website, and fill up the details before you go to the doctor’s. You must only sign it in the presence of the doctor and the second witness.
Should you tell anyone that you have made an AMD? Can your family members object to it? Will all hospitals be made aware of your choice to die should you become terminally ill? If you are admitted into a hospital after making the AMD, will the doctors and nurses care less about you, because you choose to die faster? Can you change your mind about the AMD?
Whether to make an AMD is entirely your wish – you make it if and when you want to. By your AMD, you are telling the doctors that if the process of dying starts and you are unable to tell them that you don’t wish to be put on life-sustaining machines just to prolong the dying process, then they should just let you go, and take the machines off you.
Will you be given less care because you made an AMD? No, because nobody knows that you have made one. Hospital staff and doctors do not know, and are not allowed to ask you if you have made one – that will be a criminal offence! Only when the doctor treating you believes that you are terminally ill, and that you cannot tell him what you want, will the doctor be allowed to ask the Registrar of Advance Medical Directives whether you have made an AMD.
So what happens then? Will your doctor think, “Well, he’s dying, and has made an AMD. So, there’s no need to help him any further. Let’s just let him die!”? Most certainly not. The law says that even in such a case, the doctor must continue to provide you with care to treat and relieve your pain. They just won’t prolong the dying process, and will respect your wish to let you die naturally.
What if you change your mind? You don’t want to reject the life-sustaining machines anymore, but you have already made an AMD! Is that the end of the road for you? Well, not at all. If you change your mind, then all you have to do is to fill up Form 3 in the presence of a witness. You will receive Form 3 with the confirmation of the registration of your AMD. Send Form 3 to the Registrar of AMD, and it will cancel your AMD. If you do not have Form 3, you can also write a letter to the Registrar, with your name, identity card number, address and contact numbers, and state when (date and time) and where you have revoked or cancelled your AMD. There must be a witness to this as well. If you are unable to write the letter yourself, you can ask your witness to submit Form 3 or a letter on your behalf to the Registrar, but he must explain why you are not able to do it yourself.
The Human Organ Transplant Act (“HOTA”) has also seen amendments. So, does this mean that, if you make an AMD, you will be left to die so that they can take your organs? How can you be sure that they won’t let you die so that they can take your organs under HOTA? There is in fact no connection between AMD and HOTA.
Firstly, before your AMD can come into effect, there will be a panel of three doctors, including your doctor and two specialists, who must unanimously confirm that you are terminally ill. If they cannot agree, then your doctor will review his decision again. If he still believes that you are terminally ill, then a second panel of three doctors will look at your case again to see if you are terminally ill. If the second panel also cannot be sure that you are terminally ill, then your AMD will not kick in, and you will continue to be put on life-sustaining machines.
Secondly, the doctors who determine the death of a person whose organs may be harvested for transplant under HOTA cannot be involved in the care of that person; they cannot be involved in the transplant team; they cannot be involved in the selection or care of the person receiving the organs.
Above all, you can opt out of HOTA if you do not want your organs to be harvested for transplant.
Another issue that is often confused with AMD is euthanasia or “mercy killing”. Euthanasia is when you assist a person to end his life to end his pain and suffering. He may not be terminally ill. Euthanasia is done deliberately to end a life of a person who is not dying. This is different from AMD which only stops interfering with the process of dying after it begins. Euthanasia is illegal in Singapore.
So, you are well looked-after until such time that you have to go. Can your family members object to your AMD and insist on putting you on the life-sustaining machines? They may, but the doctors will still act according to your AMD. To avoid awkwardness that such a situation may cause, it would be good to discuss the matter with your loved ones and make them understand your wishes.
We should also think about what may happen if we are on our way out of this world, but are unable to tell those around us not to prolong our agony, and to let us go. We can only imagine what goes through the mind of a person who is trapped in that state, and kept alive, day after day – perhaps against his/her wishes? Think about what you would want if you were in that state. Would you want AMD to do the talking when you can’t?
The AMD works fine so long as you are terminally ill. What would happen if one loses one’s mental capacity? Traditionally, the next-of-kin of the mentally incapacitated person had to apply to Court for the appointment of a Committee of Person and Estate of the mentally ill person under the now-repealed Mental Disorders and Treatment Act. Now, there is an easier solution more economical than the application to Court, which had to be supported by the Affidavit of Evidence of a relevant medical practitioner. One can now make a Lasting Power of Attorney under the Mental Capacity Act, (Cap 177A). When you make a Lasting Power of Attorney, you give the power to someone you trust to act on your behalf and in your best interests in the event that you lack the capacity to decide for yourself. The law has put in place measures to ensure that the person that you give your Lasting Power of Attorney to does not “imprison” you in a false state of incapacity. He most certainly cannot make the decisions that your AMD can do for you.
Life’s challenges are aplenty. Whilst it is all but impossible to prepare for each and every eventuality, we can anticipate common issues that growing older might bring to our doorstep. The law makes provisions for some of the challenges that might otherwise be out of our control.
Devi Haridas
Sim Law Practice LLP
E-mail: devi.haridas@simlawpractice.com