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A Living Will is also known as Advance Directives. Living Wills are intended to allow individuals to specify the healthcare they would or would not find acceptable in the event they lose capacity. They are especially useful when made with Lasting Powers of Attorney, since the person legally gives power to others (their attorneys) to carry out their wishes specific in the living will.
Under normal circumstances an adult has no right to demand a particular treatment but can refuse a treatment. This right to refuse treatment can be set out in writing in advance.
Following the Tony Bland case, the courts issued a practice note dealing with the procedure to be followed when an application is made to withdraw treatment prom a person in a persistent vegetative state and specified that any advance directions of the patient would be an important factor to consider, and the High Court may determine the effect of advance directives as to future medical treatment.
The Court of Appeal has held an advance refusal to be legally binding provided:
- The person had capacity at the time of making;
- A situation has arisen which was envisaged when the directive was made; and
- The person was not under any influence at the time the directive was made.
Advance decisions to refuse treatment
The Mental Capacity Act 2005 provides for an adult to make an advance decision to refuse specified medical treatment in future specified circumstances. The person must have mental capacity. Provided these provisions are made out, no liability will be made against the people refusing the treatment if they reasonably believe the advance decision to apply.
The advance decision may be modified or revoked at any time by the person who made it provided they have mental capacity. If the person who has made an advance decision later makes a lasting power of attorney giving express permission to the attorney to make decisions on such matters, the power of attorney will supersede the advance decision.
Drafting an effective advance decision is not easy because it is difficult to anticipate all the relevant circumstances that may apply. Even if such a decision has been made effectively it may be overridden by an emergency doctor who is not aware of it. The alternative is to give a health and welfare attorney power to accept or refuse life-sustaining treatment.
Your GP can also help give you advice on what your living will might include, but professional advice should be sought on the legal effect of these wishes at the same time.
The Mental Capacity Act 2005
Section 2 of the Act provides:
(i) a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain;
(ii) It does not matter whether the impairment or disturbance is permanent or temporary.
A lack of capacity cannot be established merely by reference to—
(i) a person’s age or appearance, or
(ii) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.
Section 3 provides that a person is unable to make a decision for himself if he is unable to:
(i) understand the information relevant to the decision,
(ii) retain that information,
(iii) use or weigh that information as part of the process of making the decision, or
(iv) communicate his decision (whether by talking, using sign language or any other means).
A person is not to be regarded as unable to understand the information relevant to a decision if he makes an unwise decision or if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means). The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision. The information relevant to a decision includes information about the reasonably foreseeable consequences of:
(i) deciding one way or another, or
(ii) failing to make the decision.
Section 1 of the Mental Capacity Act 2005 states that anyone making a decision on behalf of a person lacking capacity must act in the bets interests of that person. When deciding what is in the best interests of the person the details of section 4 must be considered including the past and present wishes and feelings of the person who lacks capacity.
The Mental capacity Act 2005 Code of Practice provides guidance to persons with duties under the act. Attorneys must have regard to the code of practice when making decisions on behalf of the donor.
Contact White Horse Solicitors & Notary Public for expert advice by experienced professionals on all areas of making a Living Will. The many conditions and requirements that must be met are handled by White Horse Solicitors and Notary Public with excellent professionalism, reliable conduct and integrity. We will ensure that our advice focuses on your personal circumstances and will always aim to achieve brilliant results for our clients.
White Horse Solicitors & Notary Public is well placed and highly qualified in providing professional advice and assistance on making a Living Will. We recommend getting in contact with us on 020 7118 1778 for our specialist and professional advice on such an application before any action is taken.
FAQs:
A Living Will is a commonly used term to describe the creating of documents that allow you to say how you would like to be treated towards the end of your life if you lose the ability to make your own decisions about your health and social care.
A Living Will consists of both an Advance Decision to refuse treatment and an Advance Statement of your preferences and wishes. They can be made separately, or they can be linked together.
An Advance Decision allows you to record what medical treatments you would wish to refuse, and in what circumstances, towards the end of your life. It is legally binding if made correctly. It only applies at a time when you are unable to participate in decisions about your treatment for example, if you are suffering from dementia or a stroke.
This is another name for Advance Decision. It is not commonly used in England and Wales, although it is used in Scotland.
An Advance Statement allows you to record your wishes and preferences for care towards the end of your life. It also allows you to state your beliefs and values. An Advance Statement provides guidance for those caring for you. It is not legally binding but will help your carers to act in your best interests.
An Advance Decision is a legally binding document. It allows you to say what treatments you wish to refuse if you are unable to make your own decisions.
An Advance Statement in not legally binding. It is your own statement of your wishes and preferences that you would want those who care for you to take into account towards the end of life. It can cover issues such as you prefer tea to coffee.
If you make an Advance Decision after making and registering a LPA for Health and Welfare, the Advance Decision is what must be followed. This means an ‘attorney’ cannot give consent for treatment that has been refused in an Advance Decision. If you make an Advance Decision before making and registering a LPA that gives the ‘attorney’ the right to consent to or refuse treatment on your behalf, the Advance Decision ceases to be enforceable.
An Advance Decision ensures that you will keep control of choices concerning your life should you lose the ability to make your own decisions by allowing you to refuse treatment.
An Advance Statement will help to ensure that those who care for you take your preferences, wishes, beliefs and values into account towards the end of your life.
You can use this website to make your Advance Decision and your Advance Statement by yourself. You can also discuss it with your family, friends and your doctor. This is particularly important if you’re unsure of what decisions to make.
Your Advance Decision and / or your Advance Statement will only be useful if those caring for you are aware of it. So it is important to tell your doctor and close family members and make sure they have a signed copy.
Naturally, the chances of dying increase with age. So the older you are, the more important it is to set down your wishes concerning your end of life care. It is sensible for people over the age of fifty to make an Advance Decision. Any person living with a terminal illness should make an Advance Decision. However, both a stroke or an accident can happen to younger people at any time, so there is no reason to wait until you’re older or serious illness strikes.
You will participate in decisions about your care towards the end of life as long as you have the ability to do so. If you lose that ability to make decisions, those who care for you will make decisions on your behalf.
The Advance Decision is a legal document whose meaning must be clear to those who will implement your choice to refuse certain treatments in specific circumstances. By using only carefully considered wording, the website minimises the risk of misunderstandings. However, your Advance Statement in your own words allows you to put your Advance Decision in your personal context.
