Living Will: Autonomy, Planning, and Lessons

The recent debate involving businesswoman Anita Harley, a shareholder of the Pernambucanas retail chain, has brought to light a topic that remains largely unexplored in Brazil but is of both legal and practical relevance: Advance Directives (DAV), also known as a living will. This is an instrument through which a person over the age of 18 and of sound mind records, in advance, which medical treatments they wish to receive or decline in the event that, in the future, they are unable to express their will. Unlike the will provided for in the Brazilian Civil Code, which is intended for the organization of assets after death, the living will focuses on preserving the individual’s autonomy while alive but unconscious.

Currently, Advance Directives are supported by Law No. 15,378, of April 6, 2026, which established the Statute of Patient Rights, in the regulations of the Federal Council of Medicine, and in Statements 528 of the 5th Civil Law Conference of the Federal Justice Council and 37 of the 1st Health Law Conference of the National Justice Council. The Statute of Patient Rights defines advance directives as a written statement regarding the care, procedures, and treatments that the patient accepts or refuses, which must be respected when the patient is unable to freely and autonomously express their will, expressly ensuring that its terms are observed by the family and healthcare professionals, including regarding the choice of place of death and the right to palliative care. The Law also guarantees the patient the right to withdraw consent at any time, without suffering reprisals, which highlights the revocable and changeable nature of the document, which is not subject to an expiration date. Furthermore, the Statute itself provides for the role of the patient’s representative—a person designated to make decisions on their behalf regarding health care when they are unable to express their will freely and autonomously—whose appointment may be made through a record in the medical chart or in the directives themselves. themselves

The relevance of the living will intensifies when analyzed from the perspective of company partners or shareholders, especially those who hold management positions. This is because the supervening incapacity of an individual who plays a strategic role in a given corporate structure can generate not only personal and family impacts but also indirect repercussions on corporate governance and business stability. In the absence of clear guidelines, medical decisions become a source of disagreement among family members and close associates, often resulting in litigation. At the same time, uncertainty regarding the representation of the incapacitated person can lead to insecurity, conflicts, and, in more sensitive cases, disputes that ultimately have repercussions on the corporate environment, especially when there is a concentration of decision-making power or significant economic stakes involved. In this sense, Advance Directives may include the designation of the person the declarant wishes to assume their guardianship, providing the Judiciary (which has exclusive authority to issue such orders) with an element of private autonomy to be considered at the time of the decision.

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 Advance Directives, while relevant in personal and medical contexts, do not replace robust and well-structured corporate governance. The drafting of a solid Shareholders’ Agreement, with clauses that expressly address scenarios of incapacity of key partners, mechanisms for temporary or permanent replacement in management, as well as clear rules for decision-making in crisis situations, is an essential and priority measure for any company seeking to preserve its stability and operational continuity. In this context, the living will serve as a complementary and ancillary instrument, focused on the individual sphere of the entrepreneur, lacking the capacity, on its own, to fill the gaps that only well-designed corporate governance can address. Similarly, it does not replace the will as provided for by the Brazilian Civil Code for estate and succession purposes.

It is important to emphasize that the choices to be addressed in the living will should be shared with family members and trusted physicians to avoid future surprises or questions. Formalization, preferably through a public deed, provides greater legal certainty to the document; it is recommended to seek the assistance of specialized professionals, such as physicians, for a proper understanding of technical terms, and attorneys, to ensure the legal consistency of the instrument.

More than a document focused exclusively on the medical sphere, the living will should be understood as an integral part of broader planning, which must necessarily have solid corporate governance as its central pillar, with properly structured asset dispositions, corporate agreements, management rules, and business succession instruments. The absence of this governance foundation cannot be compensated for by a living will, and the mistake of treating them as equivalent can create a false sense of security that is extremely detrimental to business continuity. By anticipating sensitive decisions through truly comprehensive planning, the entrepreneur not only preserves their autonomy and personal dignity but also safeguards the stability of their corporate and institutional relationships. The scenario observed in the case of Anita Harley is an unequivocal warning: for those who hold positions of economic or strategic importance, well-structured governance is not optional—it is the first and most important line of defense, of which the living will is merely one of several possible supplements