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Written by Maria Serra
Lawyer and mediator
Maria Serra, Lawyer and Mediator
TESTAMENTARY MEMORANDUM, CODICIL AND LIVING WILL
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THE TESTAMENTARY MEMORANDUM
A testamentary memorandum is a document that serves as a supplement to a will, through which the testator distributes specific assets, such as cash, clothing, jewellery, household items, and personal effects, provided their total value does not exceed 10% of the estate.
A testamentary memorandum is valid only where a prior will exists, in which an heir must already have been designated. A testamentary memorandum does not allow the testator to appoint heirs; it merely permits the allocation of specific assets to particular individuals the testator wishes to benefit.
It does not need to be executed before a notary to be valid, but it must be drawn up in a manner that allows its authenticity and validity to be demonstrated at a later date.
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THE CODICIL
A codicil is used to add to or amend a provision in a prior will and therefore also requires a valid prior will to exist. A codicil cannot be used to appoint a new heir or to revoke the designation of an heir made in the prior will, for either of those purposes, a new will must be made.
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THE LIVING WILL OR ADVANCE DIRECTIVE
This is a declaration of wishes regarding a person's healthcare and treatment, together with instructions concerning the fate of their organs and body after death, as well as any other instructions on related matters.
It may designate a representative to act as the liaison with the medical team and to ensure that the person's life is not prolonged beyond what is reasonable and consistent with human dignity, in accordance with the instructions given by the person who signed the advance directive.
The instructions most commonly set out in an advance directive, which the representative will be responsible for enforcing, are:
- a) a general instruction that life should not be prolonged artificially in the event of a terminal illness;
- b) a list of specific conditions the person may develop, accompanied by declarations that do not conflict with the applicable legal framework and accepted medical standards (active euthanasia and acts contrary to good clinical practice are excluded);
- c) instructions regarding organ donation (specifying whether the person wishes to donate their body or organs for research or educational purposes), the choice of the manner and place in which end-of-life care is to be provided, and instructions to be followed upon death regarding the fate of the body, including cremation or burial.
It is also possible to appoint an attorney-in-fact, who may or may not be a family member, with general powers of attorney, even while the patient is still alive but their capacity has diminished and is no longer full, and/or their perception has declined.
These powers are highly flexible and allow for a tailored framework of action: designating the person who will collect the pension, the person who will manage bank accounts, the person who will make business decisions, and the person authorised to sell assets (property, shares, etc.).
Such powers may be entrusted to one or more individuals, and it is strongly advisable that they act jointly, that is, all together.
The attorney-in-fact should be as impartial as possible, in the sense that no conflict of interest should directly affect them, with the assurance that all decisions will be made in the patient's best interest.
It is also possible to appoint a guardian who will ADMINISTER the patient's assets in the event of natural incapacity (certified by two doctors when the patient enters a coma: self-appointed guardianship) and/or legal incapacity (declared by a judge in respect of a person who lacks the capacity for self-governance; in this case, the instructions given will serve as guidance for the judge).
Finally, it is highly advisable to appoint a trusted person to represent the patient in the interpretation and application of their wishes.
Contact Maria Serra, specialist wills and estates lawyer in Barcelona:
