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Disposizioni Anticipate di Trattamento – the right to choose

Following considerable public interest and pressure, the Italian government has now approved the proposed Law on Living Wills.

(See also article of 4 April 2017, “Living Wills in Italy- Il Testamento Biologico”, published by Jessica Zama).

Law n.219 of 22 December 2017 is now in force, and means that any individual in Italy, who is over 18 and has mental capacity, can now specify in advance, via a “Living Will” (called “Disposizioni Anticipate di Trattamento”, or “DAT”), what actions are to be taken on their health, in case they are no longer able to make those decisions themselves because of illness or incapacity.  These choices include the consent or refusal with respect to medical treatments, and giving consent to their organs being donated.

An individual can also nominate someone to make these choices on their behalf (a “fiduciary”), and an alternate fiduciary in case that person cannot, or will not, make that decision.

The only requirements relating to the format of the DAT is that this must be in writing, and must be signed by the deponent, the fiduciary and the alternate fiduciary.  It can be as simple or as complicated as the deponent wishes it to be (always with regard to the law- it is not possible to request any treatment that is against the law, or contrary to doctor’s code of ethics).  The DAT can either be a public deed, prepared by a Notary, or a simple private document, prepared by that person (with the help of a lawyer, if they so wish).

The signed DAT must then be lodged with the local Comune, and will then be recorded in the relevant register, or it can be registered at the nearest hospital.

The DAT can be revoked by the deponent at any time.  The fiduciaries can also, at any point after the DAT is registered, revoke their acceptance to act as such, with a written document which must also be lodged, and which must be notified to the deponent.  The deponent can also revoke the chosen fiduciaries’ instructions, using the same method as above.

In the event that the person is unable to sign the DAT, he/she can express their wishes via a video recording, or similar device that allows for the communication of the wishes to occur.

Any doctor is, by law, obliged to follow the express wishes of the patient which have been set out in the DAT (again, as long as these wishes are not contrary to the law) and are, as such, exempted by any criminal or civil penalties in this regard.