Many are the concerns and arrangements that involve estate and succession planning, mostly related to the moments after death. However, a very important document, whose effects precede the death of its subscriber, has gained prominence in discussions about planning: the living will.

Originating in the United States, the document is nothing more than a declaration in which the person indicates the care and treatment he or she wishes or does not wish to receive, in the event of incurable/terminal illness.

Most legal scholars consider the expression "living will" to be incorrect, since it is not exactly a will, the provisions of which are fulfilled after the individual's death. The declaration is actually a set of directions for making decisions while still alive, which is why the correct reference would be "advance directive" or "vital or biological declaration".

Although the practice is gaining prominence, there is still no specific legislation on the subject in Brazil, therefore vital declarations are based on the constitutional principles of human dignity, private autonomy, and the prohibition on inhumane treatment (article 1, subsection II and III, and article 5, II, III, VI, VIII, and X, of the Federal Constitution).

In addition, the Federal Board of Medicine created, in 2012, Resolution 1,995/12, which deals with advance directives of the patient's will, indicating that it is a "(...) set of wishes, previously and expressly manifested by the patient, regarding care and treatment that he wants, or does not want, to receive at the time he is unable to express his will freely and autonomously."

Among the provisions contained in the declaration, it is possible to indicate the desire (or not) for the use of life-prolonging devices, blood transfusion, amputation, resuscitation, hemodialysis, and even the destination of the body itself (cremation/burial) and organ donation.

In addition, the resolution expressly states that the provisions contained in the vital declaration will be linked to the patient's medical chart and medical records and will take precedence over the wishes of family members, demonstrating the effectiveness of the document's preparation to ensure that the declarant's will is satisfied.

The living will, in addition to indicating the treatments to which the person wishes or does not wish to be submitted, may contain a designation of a "health care proxy", a person trusted by the declarant who will make any decisions and ensure that his will is observed.

The document, therefore, is a means of making the individual's will effective in extreme situations, in which he will probably not be able to express his wishes regarding the treatments he would or would not like to undergo. In addition, it saves close family members from making difficult decisions and carrying the weight of their consequences.

It is important to emphasize that euthanasia is forbidden by our legal system and is an unlawful act defined in the Penal Code. Thus, if the vital declaration contains a mandate to use techniques that actively and intentionally accelerate the person's death, it is possible that the document will be considered null and void.

On the other hand, provisions consistent with orthothanasia are allowed in a living will. This makes it possible for the person to determine that they do not wish to employ artificial techniques to prolong their life, but only to use palliative measures, a choice that aims to avoid perpetuating the patient's suffering, both physical and psychological.

It is also possible for the declarant to choose to transfer this decision to a trusted physician, who must certify the irreversibility of the health condition.

There are no formalities for preparation of the document, but it is recommended that it be done by means of a public deed, for greater legal security.

As an important mechanism to ensure a dignified death, living wills are a way to meet the wishes and desires of the person making the declaration, in addition to avoiding conflicts between family members and doctors, allowing an individual's passing to take place under the terms he defines, as long as they do not infringe on the legislation in force.


GONÇALVES, Carlos R. Direito civil brasileiro v 7 – direito das sucessões [“Brazilian civil law v 7 - succession law”]. Editora Saraiva, 2021.

TARTUCE, Flávio. Direito Civil - Direito das Sucessões [“Civil Law - Succession Law”] - Vol. 6. Grupo GEN, 2021.

LÔBO, Paulo Luiz N. Direito Civil Volume 6 - Sucessões [“Civil Law Volume 6 - Successions”]. Editora Saraiva, 2022.