Advance Decisions and Living Wills

The idea behind a living will or advance decision is to ensure that others, including doctors, know about your wishes for your health care if you become incapacitated.

Advance decisions and living wills are controversial entities in the legal and medical worlds at the moment. The term “living will” is slightly misleading in that it is not a “will” in any accepted sense of the word. It is instead a written statement of “advance decisions” made by a person whilst they have capacity outlining their decision not to have certain medical treatment if they lose capacity and become incapable of communicating these preferences.

For example someone could direct that: “ I do not wish to be resuscitated” or “ I do not wish to be placed on life support” or “ I do not want to have a blood transfusion”.

If you settle an advance decision, you cannot nominate someone else to take a decision for you once you are incapacitated. The terms and decisions are made by you when you settle the terms. Also, you cannot request a particular type of treatment over another one so you cannot say “I would prefer to be given antibiotics instead of a blood transfusion”. Also you cannot say that you wish to refuse basic medical care or refuse food and water.

An advance decision is in principle legally enforceable provided it is in writing, has been witnessed and there are no doubts as to your mental capacity at the time of making the document. However it has to be borne in mind that it only applies to the treatments and circumstances set down in the document, and cannot be used as a broad brush to cover all potential scenarios.

Extreme care must be taken when preparing the document to make sure that the statements in the document are not too narrow or too broad. If your statement is too vague or open to interpretation, it will not be enforceable.

If you suffer from a medical condition that falls outside of the terms of the advanced decision and that is not included within the advance decision, the document is treated as if it doesn’t exist and it will then be up to your treating doctor to decide what is in your best interests.

If you wish to make an advance decision, it is important to take advice from your solicitor and GP, as they will be able to provide guidance on what to include in the document. In addition, a statement from your GP that you were of sound mind at the time of making the document is a useful safeguard against any future challenges from loved ones or doctors who are treating you.

It is also worth bearing in mind that a Health and Welfare Lasting Power of Attorney (LPA) covers much the same ground as an advance decision. The main difference here is that scope of the LPA is much wider. Your nominated representative (called an attorney) can consent to or refuse medical treatment on your behalf, for all aspects of your medical care including new conditions that develop. They can also make decisions about your day-to-day welfare such as where you live, who looks after you etc. It is a much more powerful document which confers much broader responsibilities on the attorney.

If you have an advance decision in place and then go on to make an LPA, you need to be aware that the LPA invalidates the advance decision unless it is specifically drafted to exclude the circumstances covered by the advance decision. It is important to speak to your solicitor if you have any concerns about this.

There are certainly scenarios in which advance decisions are useful and could give you peace of mind if you are concerned about a particular medical condition or set of circumstances. However they are narrow in scope and cannot cover all possible eventualities in the same way that an LPA can. There is no “one size fits all” approach when it comes to deciding what is best for you. If you have any concerns or wish to speak to a solicitor about whether an LPA or advance decision (or both!) is right for you, do not hesitate to contact us.