AMMINISTRAZIONE DI SOSTEGNO E DIRETTIVE ANTICIPATE DI TRATTAMENTO

The Italian institution of Support Administration allows a designated person to makehealthcare decisions on behalf of somebody incapable of clearly expressing their wishes.In fact, the Support Administrator is in charge of looking after the personal interests ofthe beneficiary.The designation of the Support Administrator as a tool for someone to make effectivetheir advance directives in case of an accident or of a serious illness is controversial in theItalian case law and literature. Italy currently lacks a legislation on advance directivesand living will, even if we can find some principles in the Convention on Human Rightsand Biomedicine, signed in Oviedo, and in the Italian Code of Medical Ethics and in theCode of Conduct for Italian Nurses.Due to this lack of regulation, guardianship judges have been asked from persons withoutany health problem to appoint the Support Administrator in order to ensure compliancewith their healthcare advance directives. An established jurisprudence upholds this kindof appeal, on the basis of article 408 of Italian Civil Code which reads as follow: « theSupport Administrator can be appointed in anticipation of an hypothetical futureincompetence ». With judgment No. 23707/2012 of 20 December 2012, ItalianSupreme Court has given preference to the opposite case law trend and has ruled that theincompetence of the beneficiary must be simultaneous with the designation of theSupport Administrator.This article considers the case law, both preceding and following judgment No. 23707/2012 of the Supreme Court, and aims at a review of the concept of advance directive. Inthe literature and in the case law the idea of advance directive is used even to describe apresent choice. We believe, though, that in these situations the person expresses wishes about a therapeutic project shared with the healthcare professionals and not to a singlemedical treatment.