Living Wills
23 December 09
Introduction
The benefits of Lasting Powers of Attorney are that they allow you to dictate how your financial affairs or personal welfare will dealt with in the event of your becoming mentally incapable of managing your own affairs during your lifetime. Should you have specific concerns about any medical treatment, however, these can be addressed in a living will, technically known as an ‘advance decision'. These are increasingly popular in the UK, particularly among people with chronic conditions whose health is likely to deteriorate.
Advance decisions
Following the coming into force of the Mental Capacity Act 2005 on 1 October 2007, advance decisions have a statutory footing. There are now two types of advance decision: the advance statement and the advance refusal and both only come into effect when the maker loses capacity.
An advance statement is a general expression of your wishes regarding the treatment and care you would like to receive in the event that you become unable to communicate these wishes for yourself. It can be as simple or as detailed as you like. It could, for example, cover your religious beliefs or the sort of food you would prefer if you were taken into care. It could also indicate who, if anyone, should be consulted before you are given any treatment. The people administering the treatment must consider the contents of the advance statement but are not legally obliged to follow it, if, for example, it conflicts with their professional medical judgement.
An advance refusal, however, is legally binding. It allows you to refuse any treatment for any reason, even if this could lead to your death. An advance refusal must state exactly what type of treatment is to be refused and should mention the circumstances in which it is to apply (it will not apply if the specific circumstances are absent or in relation to treatments which are not specified). As it is such an important document, it must be clear although this does not mean that technical medical language must be used.
If the advance refusal is, or includes, a decision to refuse life-sustaining treatment, it must state clearly that it is to apply even if you life is at risk, it must be made in writing and be witnessed. Although other forms of advance decision need not be in writing, it is advisable that they are in order to avoid any uncertainty over their content or validity.
Advance decisions can be withdrawn or altered by the maker at any time whilst the maker has capacity and may be revoked by a later Lasting Power of Attorney (Personal Welfare) which includes provisions relating to the same treatment.
Pre-October 2007 living wills
All living wills made before 1 October 2007 will still be valid if they satisfy the requirements of the Mental Capacity Act 2005. We are happy to review any living wills made before that date to ensure that they do comply with the current law.
Our role
We can help you by advising on all aspects of advance decisions, from reviewing living wills in order to ensure compliance with any legal formalities, to the drafting of your, or a family member's, living will. We have a great deal of expertise in doing so and pride ourselves on offering a sensitive and compassionate service.