Advance Healthcare Directives: Autonomy, Planning, and Key Lessons

The recent debate involving businesswoman Anita Harley, a shareholder of the Pernambucanas retail chain, has brought to light a topic that is still relatively unexplored in Brazil but carries significant legal and practical weight: Advance Healthcare Directives (DAV), also known as a living will. This is an instrument through which any person over 18 with full legal capacity can record, in advance, which medical treatments they wish or do not wish to receive if they become unable to express their will in the future. Unlike a traditional will under the Brazilian Civil Code, which handles estate planning after death, a living will focuses on preserving an individual’s autonomy while they are alive but unconscious.

Currently, Advance Directives are supported by Law No. 15,378/2026 (the Patient Rights Statute), regulations from the Federal Council of Medicine, and legal precedents from both the Federal Justice Council and the National Council of Justice. The Patient Rights Statute defines advance directives as a written declaration regarding the care, procedures, and treatments a patient accepts or refuses. This must be respected when the patient can no longer express their will freely, ensuring that their terms are followed by family members and healthcare professionals—including choices regarding the place of death and the right to palliative care. The law also guarantees the patient’s right to withdraw consent at any time without reprisal, highlighting the document’s revocable and flexible nature, as it does not expire. Furthermore, the Statute provides for a patient representative—someone appointed to make health-related decisions when the patient is incapacitated—who can be named in medical records or within the directives themselves

The relevance of a living will intensifies when looking at it from the perspective of partners or shareholders, especially those in management roles. This is because the sudden incapacity of a strategic individual in a corporate structure can trigger more than just personal or family issues; it creates indirect ripple effects on governance and business stability. Without clear guidelines, medical decisions often become a source of conflict between relatives, frequently leading to litigation. Simultaneously, uncertainty regarding the incapacitated person’s representation can cause insecurity and disputes that impact the corporate environment, particularly where there is a high concentration of decision-making power or significant economic value involved. In this sense, Advance Directives can include the appointment of a preferred guardian, providing the Judiciary (which has the sole authority to decree guardianship) with a clear expression of private autonomy to consider.

This is exactly why the Anita Harley case is so emblematic. After a health event left her permanently incapacitated, a complex dispute broke out among several people claiming the legitimacy to represent her and participate in her decision-making. While the controversy covers multiple areas—including estate and succession issues—one of the core points is the absence of an unequivocal statement from the businesswoman herself regarding who should represent her and what healthcare guidelines should be followed. The lack of a structured living will amplifies uncertainty and conflict, demonstrating the real-world risks of a lack of prior planning.

Given this, it is essential to understand that while Advance Directives are vital in the personal and medical sphere, they are no substitute for robust corporate governance. Drafting a solid Shareholders’ Agreement—with clauses specifically addressing the incapacity of key partners, temporary or permanent management succession mechanisms, and clear crisis decision-making rules—is an essential and priority measure for any company aiming to preserve its stability and continuity. In this context, a living will acts as a complementary and ancillary instrument focused on the individual; it cannot, on its own, fill the gaps that only well-designed corporate governance can address. Likewise, it does not replace a traditional will for estate and succession purposes.

It is highly recommended that the choices made in a living will be shared with trusted family members and physicians to avoid future surprises or challenges. Formalizing the document, preferably through a public deed, provides greater legal certainty. It is also advisable to seek guidance from specialized professionals, such as doctors to understand technical terms and lawyers to ensure the instrument’s legal consistency.

More than just a medical document, a living will should be seen as part of a comprehensive planning strategy. This strategy must be built on a foundation of solid corporate governance, including estate provisions, shareholders’ agreements, management rules, and properly structured business succession instruments. A living will cannot compensate for a lack of governance, and treating them as equivalents can create a false sense of security that is extremely damaging to business continuity. By anticipating sensitive decisions through truly complete planning, an entrepreneur not only preserves their personal dignity and autonomy but also protects the stability of their corporate and institutional relationships. The Anita Harley case is a clear warning: for those in strategic or economically relevant positions, structured governance isn’t optional—it is the first and most important line of defense, of which a living will is just one of many possible tools.