When medicine moves faster than the law
Jacopo Crivellaro of Baker McKenzie shares his thoughts on rethinking health care in modern estate planning, with a focus on values-based instructions, better-prepared healthcare proxies and regular reviews of care preferences.
Succession planning has traditionally focused on the orderly transfer of property from a wealth owner to his or her intended beneficiaries upon death. Nevertheless, the law has long recognised that an interim phase preceding death can exist: a vulnerable period between full mental and physical capacity and the end of life. During this phase, individuals may lose the ability to make decisions for themselves due to illness, injury, or cognitive decline. Yet decisions relating to health care, personal welfare, and financial affairs must still be made. Historically, certain legal systems – primarily within the common law tradition – responded by permitting the appointment of representatives to act on an individual’s behalf during this period (commonly referred to as a “Health Care Proxy”), while also allowing individuals to articulate their preferences in advance through instruments such as Advance Health Care Directives or Living Wills. Together, these mechanisms were designed to preserve personal autonomy by extending individual choice into periods of incapacity.[1]
Rapid scientific developments in medicine, including advances in genetic therapies, regenerative medicine, neurotechnology, and artificial intelligence–assisted diagnosis, are increasingly challenging the adequacy of this framework. Medical decision-making is now more dynamic and context-dependent, often involving choices that could not reasonably have been anticipated at the time these instruments were executed. This evolution raises an important estate planning question: as medicine advances at an unprecedented pace, how should individuals adapt their planning tools to ensure that their health care preferences remain relevant, informed, and ethically aligned with the decisions they would make if fully informed?
THE CHALLENGE OF STATIC INSTRUCTIONS IN A DYNAMIC WORLD
In recent years, the entire framework of health‑related estate planning has been stretched by significant developments in medicine. Advances in medical research, and innovations in pain management have improved the prognosis and quality of life for conditions once thought untreatable or inevitably debilitating. As a result, a health care document drafted today may not age well. An instruction that once seemed reasonable might no longer capture the individual’s true preferences in light of new developments in medicine.
For example, a decade ago certain neurodegenerative conditions, such as amyotrophic lateral sclerosis or Parkinson’s disease, were widely associated with limited prospects for functional recovery. In that context, an individual might reasonably have stated that he did not wish to undergo aggressive or life-prolonging intervention. Today, however, several of these same conditions may be treatable or more meaningfully managed, often with the prospect of a substantially improved quality of life. Similarly, impairments that were once considered intolerable may now be accompanied by assistive technologies, including advanced prosthetics, robotics and communication devices, that enable a level of autonomy and engagement previously unattainable.
This raises a central dilemma: if an Advance Health Care Directive is static, but medicine evolves rapidly, do those original decisions remain valid expressions of the individual’s true will? And if not, what mechanisms can be adopted to ensure that the planning remains both relevant and principled?
THE CASE FOR FLEXIBILITY AND PRINCIPLE‑BASED PLANNING
One emerging school of thought therefore advocates a shift away from highly detailed, prescriptive instructions and toward a framework that better reflects the rapid evolution of modern medicine. Rather than declaring, for example, “I do not want resuscitation” or prohibiting cardiopulmonary resuscitation in absolute terms, an individual might instead articulate a conditional principle, such as declining resuscitation where the quality of life realistically achievable thereafter would fall below specified thresholds. This approach preserves personal autonomy while avoiding the rigidity of fixed, treatment-specific prohibitions.
One could posit that such a model is more resilient because it prioritises values over fixed rules. While medical technologies and treatment options evolve, an individual’s core values tend to remain comparatively stable. The directive thus becomes less about particular interventions and more about the individual’s underlying philosophy, whether centered on dignity, independence, relief from suffering, meaningful connection with others, or preservation of cognitive function. These values can guide decision-makers even when the medical context differs substantially from what the individual could have anticipated at the time the directive was executed.
Of course, the scope and ultimate wording of all Advance Health Care Directives must be evaluated within the applicable regulatory framework.
A second, equally important dimension of modern health care planning concerns the selection and preparation of the designated representative for healthcare matters, the Health Care Proxy. A proxy who genuinely understands the individual’s values, lifestyle, preferences, and emotional priorities is often better positioned to make faithful decisions than any written document alone. In this sense, the proxy functions not merely as a decision-maker, but as a steward of the individual’s ethical framework. As such, effective planning requires substantive engagement between the individual and the proxy. Individuals should be encouraged to discuss concrete scenarios, articulate their fears and aspirations, and define the boundaries of care they consider acceptable. Such conversations may include reflections on prior experiences with illness, attitudes toward medical risk, or deeply personal conceptions of what constitutes an acceptable quality of life.
Moreover, contemporary planning need not rely exclusively on written directives. Alternative forms of expression, such as video or audio recordings, can convey nuance, tone, and emotional context that text alone may fail to capture. While these materials do not replace formal legal instruments, they can materially assist proxies and clinicians in interpreting the individual’s wishes with greater fidelity and humanity.
Given the pace of medical innovation, periodic reassessment has become an essential component of effective health care planning. While no individual can reasonably be expected to remain informed about every medical advancement, estate planning professionals are well positioned to encourage clients to revisit their directives at regular intervals, for example every three to five years, and following any material change in health status. The objective is not to reconstruct the planning framework from the ground up, but rather to reconfirm that the underlying values and guiding principles remain intact and to make targeted adjustments where they no longer do.
CONCLUSION
Health care planning was never intended to be a static exercise, yet for much of its legal history it has been treated as such. Advance Health Care Directives and Health Care Proxies were designed to safeguard autonomy during periods of incapacity, extending individual choice into moments when direct decision-making is no longer possible. In an era of relatively stable medical options, this framework was largely sufficient. Today, however, the accelerating pace of medical innovation has exposed its limits.
Rapid developments in medical treatment mean that health care decisions increasingly arise in contexts that could not have been anticipated at the time traditional directives were executed. Static, treatment-specific instructions risk either over-constraining decision-makers or misrepresenting the individual’s true preferences in light of new possibilities. The challenge is not merely technical, but ethical: how to ensure that an individual’s autonomy remains authentic, rather than fossilised, as circumstances evolve.
Ultimately, effective health care planning in the modern era requires accepting uncertainty rather than attempting to eliminate it. The goal is not to predict every future medical scenario, but to construct a framework capable of responding to change with fidelity to the individual’s deepest commitments.
Text by:
Jacopo Crivellaro, of counsel, Baker McKenzie
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[1] Advance Health Care Directives allow individuals to record binding or guiding instructions concerning medical treatment, while Health Care Proxies (or Lasting Powers of Attorney for health and welfare) authorise a designated representative to make health care decisions on the individual’s behalf, guided by the individual’s values and prior wishes.
