What are Living Wills?
What are living wills, now known as advance decisions?
An advance decision is a statement explaining what medical treatment the individual would not want in the future, should that individual ‘lack capacity’, as defined by the Mental Capacity Act 2005.
It is legally binding in England and Wales (and, under different legislation, in Scotland).
Except in the case where the individual decides to refuse life-saving treatment, it does not have to be written down, although most are, as a written document is less likely to be challenged.
Why are advance decisions important?
At a time when person-centred care is key and the rights and dignity of the individual are paramount, advance decisions are featuring more and more in the legal and medical landscape. They represent significant mechanisms for both safeguarding and promoting an individual’s health and interests. Crucially, they maintain an individual’s dignity. If, for example, an individual was in medical need of treatment (such as a blood transfusion, an amputation or a feeding tube) and wasn’t able to make their own decision at the time (e.g. because they were unconscious), the advance decision would tell doctors if the person had refused such treatment.
Who should make an advance decision?
Ideally, everyone should make an advance decision. This is because all of us are at risk of suddenly losing our capacity to make medical decisions for ourselves – if we are unconscious due to a car accident, a fall or a stroke, for example. Some of us know that we are going to lose capacity sooner rather than later – in particular, people with a progressive neurological disease, or perhaps mild memory loss, which might render the person at risk of progressing to dementia. Advance decisions offer the opportunity to say what you do and don’t want if that were to happen.
Disputes about what is in an incapacitated person’s best interests are often the subject of protracted court proceedings and so it is without doubt that having an advance decision would avoid that. In a recent court case a woman in a minimally conscious state was refused an application to withdraw artificial nutrition and hydration, allowing her to die. Without engaging in ethical and moral discussions about the rights and wrongs inherent in this judgment, if this woman had had an advance decision specifying “I refuse artificial nutrition and hydration if I am ever in a minimally conscious state” (which is what her family believed that she would have said), then that would have been legally binding. She would have been given some dignity and empowerment over her life and death?
How to make an advance decision valid
To ensure that that your advance decision is legally binding, the following must apply:-
- You must be over the age of 18.
- You must have capacity to understand information relevant to the decision, to remember that information and to weigh the pros and cons of your decisions. Unless you have an impairment or disorder of the mind or brain (a mental illness, brain injury, dementia etc) this is assumed to be the case. Even if you do have such an impairment it is often possible for you to make an advance decision with appropriate support.
- You have stated the specific treatments you want to refuse.
- You have clearly listed the set of circumstances in which treatment would be refused.
- You have clearly stated: “I maintain these refusals even if my life is shortened as a result”.
- It is properly witnessed
It is important to review your advance decision if there are particular changes in your circumstances (e.g. if you have a new diagnosis) but the assumption otherwise is that the advance decision is valid unless or until you revoke it. If you have an old “living will” or an advance decision that is more than 2-3 years old, however, it would be a good idea to review it, make any changes you want, and sign it again and get it witnessed again.
Be mindful, however, of the terms “living will” and “advanced statement”, since these are often not legally binding and are merely an expression of the individual’s desires, values and beliefs.
Lasting Power of Attorney for Health and Welfare
An advance decision means that you make your own decisions in advance for when you are no longer able to make them for yourself. You can also (or alternatively) appoint somebody else to make decisions in connection with your treatment. You do this by appointing a Lasting Power of Attorney for Health and Welfare. (Note that there is also a Lasting Power of Attorney for Property and Finance – this is also a very good idea, but– as its name suggests – it allows someone you choose to make decisions about your money and is not relevant to health or social care decisions).
A Lasting Power of Attorney for Health and Welfare (if made without any restrictions or conditions on your attorney), once registered, will allow your attorneys to do anything that you can do now in relation to your personal welfare
This might include deciding about where you live, what care and accommodation may be appropriate, consent to medical treatment and the refusal for life sustaining treatment
Your attorneys can only use this power when you are assessed as without the mental capacity to make your own decisions about these things.
Again, with an Lasting Power of Attorney for Health and Welfare, you are accorded peace of mind that your wishes and feelings are accorded with, in the event that you are unable to make these decisions for yourself in the future
Whilst it is hoped that such mechanisms are not to be relied on in the future, it saves difficulty and subsequent turmoil for close family relatives, who are left in confusion as to what your wishes are in the event that you lose capacity and cannot make these decisions yourself
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