The prevailing ethical and legal approach recognizes the importance of the patient’s autonomy and the need for his consent to medical care. The patient has the right to choose between different options for treatment and even to refuse medical treatment altogether¹. In the State of Israel², this principle is formulated in the Patient’s Rights Act, which states that “no medical treatment will be given to a patient unless the patient has given informed consent³“.However, it is common in the final stages of life for a patient to lack legal competence, which means that he cannot at this point give his “informed consent” to the medical treatment that will be given to him. Such a patient can express his wishes at an earlier stage, when he still has a clear mind, through explicit and detailed instructions, in writing or orally; alternatively, one can infer his wishes from indirect statements he made in the past. In the State of Israel, the Dying Patient Act delineates the right of a terminally ill patient to decide whether to receive life-extending medical treatment through the appointment of a proxy or the provision of a living will⁴. One specific type of proxy is the medical power of attorney, as laid out in theLegal Capacity and Guardianship Law, which is also applicable to cases where the patient is not defined as dying. For the differences between these, see the footnote⁵. In practice, few individuals sign documents regulating their treatment⁶.

The advantage of living wills is that they enable a person to express their wishes, and they make it easier for the decision makers to act accordingly. There is also significant benefit in actually bringing the topic up for discussion and debate, as this starts a conversation on topics that are typically avoided, and this can remove a heavy burden on the family by providing clarity as to the patient’s wishes.

This method also has its drawbacks. Firstly, the patient’s wishes might change after he writes the instructions. In this context, it should be noted that in the State of Israel, living wills are valid for only five years from their date of signing. Nonetheless, this is a not an inconsiderable period of time, and it is possible that things appeared different at the time of the signing of the instructions, when the patient was in a normal medical condition, than when he is dealing with a serious illness. Another disadvantage is the substantial difficulty in clearly and unambiguously formulating a response to all future situations, and in certain cases the practical need may arise to interpret what the patient said or wrote and adapt it to the required treatment, and such an interpretation may not accurately reflect the patient’s wishes. Finally, there might be patients who will want to leave room for discretion.

Another way for the patient to provide instructions is by appointing, while he is competent, a specific person to have medical power of attorney, so that he will be authorized to make decisions on the patient’s behalf. This method circumvents some of the disadvantages of living wills. The specific advantage of this method lies in the fact that the person himself has chosen the individual who will make the decisions for him and in whom he has placed his confidence. However, not every person has someone whom he can fully trust when it comes to questions of life and death. Likewise, one should not minimize the difficulty the proxy faces when he has to make a decision that reflects the patient’s wishes in challenging circumstances. This is indeed a heavy burden.

Despite these shortcomings, a power of attorney under the Dying Patient Act, prior written medical guidelines, or a combination of the two, can make things easier for the patient, his family members and the medical staff in the decision-making process at the end of his life, and help resolve various dilemmas.

Power of Attorney or a Living Will?

The question of whether it is better to appoint someone with the power of attorney or to write a living will, or to combine the two options, is a practical, individual question with legal implications, and which may also depend on the specific medical circumstances at hand, and we do not intend to resolve it here⁷.

Practical Aspects of the Power of Attorney and the Provision of a Living Will

It is not enough to simply appoint a proxy and leave the decisions to him.

It is advisable for the proxy to consult others who can assist him in the decision making. This can include seeking the advice of experts in halakha and medical ethics, and consulting with family members. The proxy should discuss the values ​that guide the patient, dilemmas he faces, and his motivations in formulating the advance directives with the patient and his family. He must be knowledgeable in the details so that he can reflect the patient’s wishes in the best possible way.

A power of attorney is a very broad authorization and does not directly address specific medical treatments that may become relevant, such as dialysis, major and minor surgeries, chemotherapy, radiation, nutrition, and many other procedures and tests that can cause harm. All these are not necessarily detailed in the power of attorney, but they do appear in the living will form in use in Israel.

In light of the fact that someone’s opinion may change over time (for example, what seems to him unbearable when he is young might be perceived as tolerable at an older age), it is advisable to review the guidelines periodically, and similarly to hold follow-up consultations with the proxy. This is why the living will and the power of attorney are legally valid for only five years (with the option to extend)⁸.

It is recommended to consult one’s general medical practitioner before signing these forms. One can also refer to a lawyer who is knowledgeable in the field in order to determine the best way to proceed. It is important to consult a halakhic authority as well.

Summary

1. We recommend that anyone who anticipates that his medical condition will deteriorate, or who has reached old age, should prepare himself for what is to come, draft advance medical instructions for his treatment, either in writing or orally, and/or appoint a representative to make medical decisions when he will no longer have the capacity to do so⁹. The continuing power of attorney is beneficial not only with respect to medical issues but also for issues of property and personal concern.

2. Family members should encourage the patient to make decisions about future medical affairs while his mind remains clear, but they must be careful to do so in a way that does not discourage or dishonor the patient¹⁰.

3. The instructions for when to provide treatment and when to refrain from doing so involve serious halakhic questions, and it is appropriate to write the instructions in consultation with a halakhic authority who is knowledgeable in the field. The recommendations in the next chapter do not obviate the need for a detailed discussion of each specific case.

4. If you have any questions, please contact the Tzohar Ad 120 hotline at *9253.

1. The content of the next two chapters (and this pamphlet in general) refers to legally competent adults, as defined in the relevant laws. This pamphlet should not be construed as offering advice of any kind, including legal advice. Its purpose is to assist patients and their families, and analyze their dilemmas. In any specific case, it is important to seek legal, halakhic and ethical advice.
2. In other countries, a competent local rabbinic authority who is familiar with the legal context in the relevant country should be consulted
3. Patient’s Rights Act, 5756–1996, 4, xiii.
4. The Dying Patient Act, 5766–2005, section 5. Legally speaking, this process currently comes under the purview of two other laws: The Patient’s Rights Act and theLegal Capacity and Guardianship Law. Regarding all the questions discussed here, see Encyclopedia of Medicine and Halakha, vol. 5, “A Terminally Ill Patient (a),” pp. 227–34; Pesach Shwartzman, Chapters in Palliative Care, March 2015, p. 6– (https://bit.ly/33oySp1).
5. A continuing power of attorney, which should be administered by a lawyer who has undergone the relevant specialized training, allows each person to determine how – and by whom – his affairs will be handled in the future, when he is no longer able to care for himself (even when he is not defined as a terminally ill patient); a personal, medical and property affairs can be included. The Ministry of Health also offers a terminally ill patient request form: https://www.gov.il/he/service/dying-patient-request. This form deals only with the treatment of a terminally ill patient and can be filled out even without the assistance of a lawyer and deposited with the Ministry of Health. Alongside this form, the Ministry of Health also provides a form for advance directives for medical care of a terminally ill patient. There are additional options for advance directives, one of which is Clalit Health Services’ “five wishes”; see https://bit.ly/3tafkiG. The “third wish” provides brief and clear advance instructions, while the “fifth wish” is a proposal to use the Ministry of Health’s power of attorney form. It is also advisable to make a few copies that can be submitted when necessary to the various bodies that might deal with the patient in the future.
6. On the difficulties of implementing the law, see Shwartzman’s document (footnote 154, above), and the article of David Stein, “Terminally Ill Patients and the Sanctity of Life” HaShiloaḥ 20 [2020], p. 66. According to the data Stein cites in his article, as of 2019 only about 25,000 people in the State of Israel had filled out instruction forms.
7. It may seem that leaving detailed advance medical instructions will be the best reflection the patient’s wishes, but as stated, providing such instructions involves various difficulties. The main difficulty is that unequivocal provisions are required at the time of action, but it is almost inevitable that questions will arise as to the meaning of the document or whether it can be regarded as comprehensive, in light of the inherent gap between present reality and any attempts to anticipate it ahead of time. The appointment of a person with power of attorney, someone who knows the patient, is close to him, and is aware of his wishes and desires his wellbeing, can enable decisions to be made that will closely match the patient’s own preferences. The main disadvantage of a power of attorney is that not every person has someone upon whose judgment he can fully rely for end-of-life questions.
8. The Dying Patient Act, 5766–2005, section 39.
9. One argument against writing a living will, from a halakhic perspective, is the fear of “tempting fate” [petiḥat peh la-Satan]. The source for this concern comes from three Talmudic passages. Abaye’s opinion is that a person should be careful not to give verbal expression to unfortunate events that might befall him and that one should refrain from mentioning his own death, so as not to “tempt fate” and cause himself harm (Berakhot 19a; 60a; Ketubot 8b). In all three cases, Abaye objects to an earlier formulation, by a sage who was not worried about tempting fate. However, the Rif, Rambam, Rosh and the Shulḥan Arukh do not cite Abaye’s directive as halakha. Furthermore, the wording of the confession for a terminally ill patient, which is cited in the Shulḥan Arukh (Yoreh De’a 338:2) includes the phrase “if I die, may my death atone for all the sins […],” in opposition to the opinion of Abaye in the passage in Berakhot 60a. Other poskim formulate his instruction as good advice rather than an explicit prohibition (see e.g., the Rama on the Shulḥan Arukh, Yoreh De’a 376:2). Though some poskim rule that it is prohibited, the major authorities do not agree with this, as stated, and at most it should be considered advice for proper conduct. It may be added that signing a living will includes an element of a mitzva, since if it is correctly worded it can guide doctors to act in accordance with the halakha in emergencies, and can also prevent family disputes, and there is no concern for “tempting fate” when one is performing a mitzva. For a summary of the various opinions, see Rabbi Naftali Bar-Ilan, “Avoiding Tempting Fate, and CVT Treatment,” Assia101–02 (2016), pp. 29–34.

   A similar issue to “tempting fate” is discussed by the poskim in relation to questions such as preparing burial needs, taking out life insurance and signing an organ donation card. Rabbi Ovadia Yosef (Yeḥaveh Da’at, III:85) writes that there is no halakhic problem in purchasing life insurance, and one is not thereby inviting trouble upon himself. With regard to signing an organ donation card, Rabbi Shaul Yisraeli (Ḥavat Binyamin, III:109) expressed reservations about doing so, in order to avoid tempting fate. However, many poskim currently support signing such a card, and they do not entertain the same concern.

10. As stated above, while raising the issue of medical care for discussion can be greatly beneficial, preoccupation with death and fatal illnesses can lead the patient to despair. In footnote 142, we stressed that even when suggesting to a terminally ill patient that he confess, the patient should be encouraged and it should be made clear to him that reciting the confession does not mean that he will die. Likewise, when talking to the patient about arranging his financial affairs, he should be told: “Do not be afraid of death on account of this” (Shulḥan Arukh, Yoreh De’a 335:7). One should suggest to the patient that he attend to the living will in a similar fashion, explaining that this does not mean that death is imminent, but the patient will benefit from preparing himself for the future, and that this is his opportunity to help those surrounding him – his relatives and the medical staff – recognize and respect his wishes. Providing clear instructions can prevent future quarrels between family members, and this knowledge can also be beneficial to the patient.