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Advance healthcare directives under Cayman law

By Samantha Conolly, Associate, Ogier in Cayman

What is an advance healthcare directive?

An advance healthcare directive is also known as a living will. It isn't a new concept but it is new to being recognised in the Cayman Islands, following the implementation of the Health Care Decisions Act in 2019. This law allows a person to determine their wishes surrounding medical care and treatment, including end of life care, should they become mentally incompetent, and prepare a legal document to this effect.

How do I make an advance decision?

A person must be 18 or older and mentally competent to make an advance healthcare directive. The form must be signed in the presence of a doctor to make sure that the directive-maker fully understands the medical decisions that the form legally binds, and that the directive-maker is competent at the time of executing the directive. The directive allows the directive-maker to appoint a proxy to make healthcare decisions on their behalf in accordance with their wishes.

Once a directive has been executed, the directive-maker should let their proxy and their lawyer have a copy, let their family know it exists, and it is even possible to request that the hospital attach it to their medical file/record.

Do you have to keep the original of the directive with you at all times?

Unlike a will, an electronic copy of the directive is valid and legally binding. A picture of it on your phone, or on email or a copy of it in your medical records will be sufficient. We recommend if you change or revoke the directive that all previous copies are removed and relevant persons notified.

What are some important take away points regarding an advance directive?

Critical for the directive-maker to bear in mind is what it can and cannot do. An advance healthcare directive allows the person to decide what they would like a physician to do in the event that the directive-maker becomes mentally incapacitated or otherwise unable to communicate their wishes. To that end the directive will only take effect once the directive-maker is deemed to be mentally incompetent. Like a will, it can be revoked at any time while the directive-maker is mentally competent.

It is important to note that in the Cayman Islands, an advance directive does not authorise euthanasia or assisted suicide.

What are the foreseeable legal issues?

There have been quite a few legal questions surrounding this relatively new law and its directive. These include questions about the directive being able to prevail over any right of an attorney of the directive-maker or of the directive-maker's nearest relative, and questions about protection for proxy and registered practitioners and the recognition of similar directives and proxies from other jurisdictions. Luckily the drafters of the law have anticipated some of these questions and issues and have adequately addressed them within the framework of the law.

By operation of the Health Care Decisions Act, 2019 section 16, while a directive is operative, it prevails over any right of an attorney of the directive-maker or of the directive-maker's nearest relative. The Power of Attorney Act, 1996 Revision provides that an instrument created under this law is not an enduring power of attorney, that means once the person is incapacitated the instrument (known as a Power of Attorney) is no longer valid.

How can you assist clients with this directive?

As a legal practitioner in the private wealth team at Ogier, our team specialises in wills and trusts, among other services. As such we offer the drafting of a directive along with the drafting of a Cayman Islands will. Having a background of over 17 years in the medical profession as a registered health care practitioner, places me in a unique position as a lawyer to be able to explain this document and provide necessary accompanying advice to our clients.

We are able to provide comprehensive wealth management planning with the peace of mind that our clients' wishes will be honoured even when they are not able to make decisions for themselves.

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