Gustavo Cerati, a rock Argentinian icon, had a stroke after a concert in Venezuela in 2010. He fell into a coma but was kept alive by an artificial ventilator for four years before passing away at age 55. Cerati is frequently referred to by legal experts as an example of what to do from a legal standpoint if a person’s will and preferences are unknown.
Cerati hadn’t indicated whether he wanted life support, what to do with his real estate, or how to administer his music businesses. He left no advance directives to determine what to do if he couldn’t express his will.
If Cerati had been living in Mexico, before Congress passed the new National Civil Procedure Code on April 24, he would have been placed under guardianship, meaning that someone else would decide everything for him. But Mexico now recognizes full legal capacity for everyone 18 or older and the right to supported decision-making.
The new code regulates that a judge can appoint a support person in cases where there is no way of knowing - by any means available - the will and preferences of the person concerned, like in Cerati’s case.
That means that now, someone close to Cerati, like his mother, girlfriend or even a friend, could appear before a civil or family judge and ask to be appointed as a support person to help make decisions. You might be wondering how this differs from guardianship. Isn’t this procedure the same as the one Mexico already had? No, not quite.
Under the new National Civil Procedure Code, the judge would have to make sure there are real, considerable, and pertinent efforts to determine Cerati’s will and preferences, including by providing reasonable accommodation or using alternative means of communication before appointing a person. There may be situations where someone might believe the person cannot convey their wishes at all, but they can with alternative means of communication.
Respect for the will and preferences of the person concerned is the overarching principle governing the code approved by Congress this week. This is a monumental shift away from the “best interests” standard, in which someone else decides on behalf of the person, under the guardianship rules.
After the judge is sure there are no available means to determine Cerati’s will and preferences, the judge would appoint a support person—someone who had a close relationship with Cerati, based on trust, friendship, care, or kinship.
The judicially appointed support person is required by the approved code to always act according to the best interpretation of the will and preferences of the person concerned, based on relevant known sources of information. Such sources would include Cerati’s mother, children, girlfriend, and members of his rock band; his life story, values, traditions, and beliefs; and previous manifestations of his will and preferences in other contexts.
The judge and the appointed support person would have the ongoing duty of ensuring Cerati could manifest his will and preference. If he recovered from his coma, he would be immediately entitled to discontinue, modify, or endorse any support provided.
People close to Cerati would be authorized to appear before the judge and question the appointed support person if they had reason to believe the support person was not acting on the best interpretation of Cerati’s will and preferences. The judge would have to listen to the information and rule accordingly to ensure Cerati’s will and preferences are honored. This is a far cry from what would have happened prior to the reform, where Cerati would have been stripped of all decision-making power and reduced to an object rather than someone who has rights.
If the person can express their will and preferences, the substantive civil codes, which are not yet in line with international law, would be applicable. The states’ civil legislative framework requires further reforms, like the one currently under discussion in Mexico City’s Congress, to completely harmonize Mexico’s legislation with international human rights law. This is an essential step forward. These state civil codes need to establish how supported decision making will operate, as well as safeguards to prevent abuse and undue influence. The reform will not be fully finished until the states move forward. Now that the Federal Congress has abolished guardianship, they need to do it.
Any of us could at some point be in the same position Cerati was. If so, we would almost certainly prefer to have someone who knows us well follow our wishes. As Cerati said in one of his concerts in 2007: Let’s go Mexico!