NOS News•today, 4:49 PM•Amended today, 7:16 PM
The ‘living will’ is on the rise. A growing group of people are now already deciding what should happen to their finances, for example, if they are no longer able to do so themselves. Unlike a regular will, with a living will you record who will be in charge of your medical care or finances if you are no longer able to do so yourself. It therefore not only regulates the distribution of property after death.
Notaries have been executing more and more deeds of living wills for years, according to figures from the Royal Notarial Professional Organization (KNB). In 2023, almost 220,000 people signed such a will at the notary, an increase of 15 percent. A year earlier the increase was 12.5 percent. A total of around 1.5 million living wills have now been signed in the Netherlands. This makes it the fourth most frequently executed type of deeds at notaries, after mortgages, transfers and ‘normal’ wills.
The living will, which has existed since 2010, comes into effect when the person is no longer able to make decisions for themselves, for example due to an accident or old age and illness, such as Alzheimer’s. The goal is to respect the person’s wishes and preferences and ensure that they are adhered to, even if he or she is no longer able to express them.
Aging
“Due to the increased aging of the population, more people feel that they need to keep a grip on the future,” says a spokesperson for the KNB. “In the past, you went to the nursing home and the remaining partner or administrator took care of the administration and other care.” According to the spokesperson, things often go wrong with guardianship because there are capacity problems at the court.
From the moment you apply for guardianship, you can easily experience a delay of six months, says the KNB spokesperson. “Suppose your father falls and your mother develops dementia. He can no longer keep up. In the meantime, the damage is increasing; bills are mounting, tax returns are not being filed.”
Guardianship
According to him, such a situation often does not arise automatically; children do not immediately recognize the problems in their parents if they only come for coffee every now and then. “If you only apply for guardianship when the situation is no longer tenable, it will take a while before you can actually do it. Unless you can use your parents’ card and know their PIN code, but that is actually illegal .”
Although banks have their own authorization system, it is limited only to that bank account. “Without a living will that has gone through the notary, you cannot sell or rent a house when the parent is in the nursing home, without any future prospects of return.”
False certainty
A living will can also provide a solution in the event of disagreement in the family. If it is not determined in advance who is authorized to make decisions, mutual arguments can arise. The KNB spokesperson: “Doctors also see this problem; who within the family is responsible for medical decisions? You can record exactly who is responsible for medical decisions in the living will, and this can be several people, including people outside the family.”
Yet there is also criticism of living wills, and especially the medical advance directives that are recorded in them. The Dutch Association for Voluntary End of Life (NVVE) believes that the documents offer “false certainty”. “People who have had their euthanasia request recorded in the living will think that they have arranged everything well, but it is a wash. A notary does not deal with that at all. And then those people also receive a bill every time they actualize their wishes.”
Notary revenue model
This makes living wills a “revenue model for notaries”, says a spokesperson for the NVVE. The association believes that notaries should stop using this type of wills and inform customers better. In the past, the association has sent several letters about living wills to the KNB, but according to the spokesperson, only received “meaningless” answers.
According to a recent PhD research, by Rieneke Stelma-Roorda, more “legal safeguards” are also needed to ensure that adults are adequately protected against abuse or mismanagement by the representative. Furthermore, problems with the acceptance of the living will by banks, for example, regularly occur, as do conflicts between family members.
Another problem with the living will is that it is a snapshot. “However, life itself is dynamic. Values, wishes and preferences can change over time,” says Stelma-Roorda. “Drawing up a living will should therefore not be a one-off act, but the beginning of a process in which the adult makes provisions for a future period of incapacity.”
