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Lawyers Urge Bahamas To Recognise Living Wills

Bahamians too frequently overlook the certainty of death, top attorneys and a medical expert warning that the failure to leave their financial house in order can leave loved ones and family vulnerable.

It could also place an undue burden on family or doctors to make end-of-life life and death decisions in a country where living wills, so accepted elsewhere, are not legally recognised.

Three attorneys from Halsbury Chambers - Mikia Cooper, Andrea Williams and Nerissa Greene - and the chief of ethics at Doctors Hospital, Dr Michael Darville, implored Bahamians to prepare better. They were speaking at a forum entitled ‘Wills, Living Wills & Trusts,’ sponsored by Halsbury Chambers.

“Bahamians think that by talking about a will, they will bring death closer,” said Ms Greene, a sentiment echoed by others, including Dr Darville. Of nearly 100 persons at the seminar, fewer than 10 had a will.

The unscientific sample was worse than gloomy international figures. According to a widely-published 2007 study, 45 per cent of adults in the US had a will and, of those, fewer than one in three African Americans and only 26 per cent of Hispanics did.

“We put all this stuff, this energy into planning about being born,” said Dr Darville. “We talk about names, what colour the room should be, baby furniture. We read magazines and talk to other parents and make play dates before the baby is born. But most people don’t want to think about how they want to die, as if they were saying: “I feel that if I talk about death, it will bring it closer.’”

Not having a will can leave family members scrambling, quarrelling or even having to borrow money to cover funeral expenses.

“Emotions are already raw,” said Ms Greene. “It is the worst possible time to expect the loved ones you left behind to try to deal with what you meant to do ,and did not spell out in clear terms.”

Financial disputes can lead to resentment that breeds lasting divisions among family members, the very people you spent your entire life working to provide for, said the lawyers.

Whether creating a trust which allows for secure and confidential disbursement of assets over a specified time period or at a specified time, or a standard will probated in court, the attorneys and the medical community agreed that the third component of planning for the time of death, living wills, should be recognised in the Bahamas.

“Back in the day, people would just pass away at home,” said Dr Darville. “You were surrounded by family. Sometimes they sang hymns. They were there for you. People who had a great life would pass on when the time came, surrounded by the people who had made their life great.”

Today’s advances in modern medicine prolong life, often past the point where there is any quality of life left. The result: A doctor trained to heal is too often left to decide when to pull the plug, stop the antibiotics, cease instructions for the feeding tube or end intravenous liquid.

“What is urgently needed is legislation recognising living wills, providing legal authority that confirms a mentally competent patient has the right to refuse any and all therapies, including those that sustain life,” said Dr Darville.

“Without legislation recognising living wills, who has the right to make decisions on behalf of the incapacitated patient? I do.”

It is a decision he has had to make more often than he ever thought when he returned home to Nassau in 2007 after years of studying, interning and practicing medicine abroad.

“Twenty-five per cent of my patients are tourists,” said the man who is now president of the Medical Ethics Committee, and assistant clinical director of the Intensive Care Unit at Doctors Hospital. “Many of them come here with living wills and we have to honour their wishes.”

But where there is no living will, or where a country does not recognise the power of attorney having surrogate decision-making ability for the patient who appointed them to make decisions in case that person is unable to speak for themselves, the decision must be made by a doctor or hospital.

“Should the doctor be allowed to make decisions on behalf of the patient? I can’t go to my mechanic and say: ‘My Jaguar is not working and you need to put in part X.’ In many of these cases where a family member says keep him alive, save him no matter what it takes, emotions are longer than the dollars.”

According to Halsbury Chambers’ founding partner, Branville McCartney, the topic was timely.

“Wills, living wills and trusts may not sound sexy or glamorous,” said Mr McCartney, “but if we made more people aware of the importance of putting your financial affairs in order, engaging in proper estate planning and creating a living will - even if it is only applicable as a guideline for a doctor to go by - we have accomplished our goal to provide information you need for the life you want as we have been doing for the past eight years. If we now have gone a step further and started the national conversation on the need for legislation dealing with living wills, then today’s workshop has truly had an impact.”

Halsbury Chambers will host another workshop in June on laws related to real estate, property matters, generation property and Crown Land. The firm, headquartered on Village Road, handles a wide range of legal services and specialises in corporate, property, estate and litigation areas.

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