The term “advance directive” or “living will” has received some media attention in the last 12 months with the production of BBC documentaries following the author Sir Terry Pratchett since his diagnosis with Alzheimers Disease.
We live in an ageing nation. People are living longer for a number of reasons. There is also an increase in age related mental health illnesses. This is proving a problem for the family members who are attempting to carry out their relative’s wishes. There is no right to deal with a person’s medical and welfare decisions unless that person has made a Lasting Power of Attorney. Some people would prefer to make their own decisions. The problem is when a person is no longer capable of making their own decisions. An Advance Directive or Living Will enables you to prepare for this eventuality NOW, taking the painful decision making process away from your nearest and dearest.
“Advance Directive” or “Living Will” means 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 can relate to all future treatment, not just that which may be immediately life-saving. An advance directive is legally binding, except in the case where the individual decides to refuse life-saving treatment, it does not have to be written down, although it is of course sensible to have it in a written document as it is more certain as to your intentions and is less likely to be challenged.
Whilst you have the capacity to make decisions, your wishes override anything contained in your advance directive or anything your legal representative may say. An advance directive/living will enables you to think about what you would like to happen in the event that you lose the ability to make informed decisions about your care and treatment. An example of such decisions includes the use of life-saving treatment in specific illnesses.
An advance directive is legally binding in that a doctor, who gave a patient life-saving treatment against their wishes expressed in a directive, faces legal action. However, as the use of advance directives becomes more commonplace, controversies are bound to arise, for example where a doctors professional ethics and responsibility to preserve human life arise.
An advance directive cannot be used to ask for a specific course of action or treatment, or to request something that may be illegal. An advance directive can also be rescinded or updated at any time.
A doctor may not follow an advance directive if there have been advances in treatment which may have affected the initial decision or there is ambiguity in the wording of the directive.
A directive may be invalid if there is some doubt concerning the circumstances giving rise to the making of the advanced directive, i.e it is not signed/witnessed, or there are concerns about the capacity of the persons understanding of the document.
For a directive to be enforced the medical profession need to be aware it exists, it will need to be registered on the NHS notes.
A directive may have a healthcare proxy. The purpose of the proxy is to see that your wishes are carried out. The proxy DOES NOT have the power to make a decicion.
The involvement of such a solicitor in the preparation of an advanced directive should substantially reduce the chance of an oversight that would result in failure of the document.