AMMINISTRAZIONE DI SOSTEGNO E DIRETTIVE ANTICIPATE DI TRATTAMENTO

The Italian institution of Support Administration allows a designated person to make healthcare 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 of the beneficiary. The designation of the Support Administrator as a tool for someone to make effective their advance directives in case of an accident or of a serious illness is controversial in the Italian case law and literature. Italy currently lacks a legislation on advance directives and living will, even if we can find some principles in the Convention on Human Rights and Biomedicine, signed in Oviedo, and in the Italian Code of Medical Ethics and in the Code of Conduct for Italian Nurses. Due to this lack of regulation, guardianship judges have been asked from persons without any health problem to appoint the Support Administrator in order to ensure compliance with their healthcare advance directives. An established jurisprudence upholds this kind of appeal, on the basis of article 408 of Italian Civil Code which reads as follow: « the Support Administrator can be appointed in anticipation of an hypothetical future incompetence ». With judgment No. 23707/2012 of 20 December 2012, Italian Supreme Court has given preference to the opposite case law trend and has ruled that the incompetence of the beneficiary must be simultaneous with the designation of the Support 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. In the literature and in the case law the idea of advance directive is used even to describe a present 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 single medical treatment.