The Right to Self-Determination and End-of-Life Decisions: The Role of the Fiduciary

This paper is about the role of the fiduciary, a surrogate decision maker in the end of life decision and specifically a health care power of attorney for patients lacking decision- making capacity. When a patient lacks the capacity to make decisions, someone else must make those decisions for the patient. Traditionally, physicians would make decisions for the patient, sometimes unilaterally and sometimes in conjunction with the patient’s close family. But this practice had no solid legal basis. Today most Countries legislatures have enacted statutes referred to living will and health care power of attorney but in Italy we still haven’t a specific law on the matter and these problems are still open. I’ ll try to show how in Italy - especially the judges - have tried to fill this void utilizing others institutes already present in our legal system. The analysis concentrates on the hypothesis that the subject, in his full capacity and autonomously, decides which treatments he is willing to undergo or refuse in the event of loss of capacity. In this respect, particular attention must be paid on the appointment of a proxy, nominated by the subject, who can express his will in case he is unable to do so. In the same way, on the basis of current legislation and in the lack of specific laws, Italian doctrine and jurisprudence have recently utilized statutes already present in the Italian legal system such as the administration of support in order to offer the subject the possibility to manifest his own will. The rules provided by the civil code in artt. 404-413, may be extended to give relevance to the instructions of the patient.