“Living Will” or Advance Directive
An Advance Decision to Refuse Treatment allows you to refuse treatment in advance of a time when you do not have the capacity to make a decision for yourself. It’s commonly shortened to Advance Decision,
When you are ill, you can usually discuss treatment options with your doctor and then jointly reach a decision about your future care. However, you may be admitted to hospital when unconscious or unable to make your own decisions about your treatment or communicate your wishes. For example, this may happen if you have a car accident or a stroke or develop dementia. To use the legal term, you would ‘lack capacity’ to make or communicate your decision(s).
In these situations, doctors must act in your best interests. The exception is if you have made an Advance Decision. An Advance Decision lets you indicate that you want to refuse certain types of medical treatment in certain situations.
It must be respected by medical professionals providing your care, whether or not they think it is in your best interests.
The term Advance Decision (increasingly replacing the term advance directive) is a statement explaining what medical treatment you would not want in the future, should you lack capacity’ as defined by the Mental Capacity Act 2005.
Some people also refer to Advance Decisions as a living will.
Whilst the term ‘living will’ helps people to understand the concept, is somewhat misleading in that, unlike a will, it does not deal with money or property. In addition, an Advance directive can relate to all future treatment, not just that which may be immediately life-saving.
The Mental Capacity Act 2005 made Advance Decisions legally binding. This means that as long as an Advance Decision is ‘valid’ and ‘applicable’ then any refusal of treatment within it is legally binding in England and Wales. This means that if a doctor knowingly ignores an Advance Decision they can face criminal prosecution or civil liability.
Except in the case where the individual decides to refuse life-saving treatment, it does not have to be written down, although most are and a written document is less likely to be challenged.
Whilst you have mental capacity, your word overrides anything contained in your Advance Decision. An Advance Decision only comes into effect if you cannot make a decision for yourself, or cannot communicate.
Talking to your loved ones about end-of-life choices
To ensure that your future care wishes are understood and respected by all those who are important to you, it is imperative that you sit down and talk to your family and loved ones about your end-of-life choices. For many of us, the prospect of such a conversation can seem like a daunting task. You or your loved ones may be uncomfortable talking about serious illness or death, or it may seem “too soon” to have a conversation about end-of-life preparations. However, it is better to have the conversation when you and your loved ones are in a calm and relaxed state, rather than in the midst of a medical emergency when everyone is stressed and it is difficult to think clearly.
While you may think that your loved ones already know what you want, the truth is there is often a startling difference between what people say they want and what their family members think they want. The only way to be certain that your loved ones understand your wishes is to sit down and have the conversation.
Preparing an advance directive
The key to preparing an advance directive is to preferably employ a Solicitor who can go through the issues that need to be discussed in a systematic and sensitive way that calls on their experience as fully qualified professionals.
The Solicitor can and should prepare all the necessary documentation clearly and carefully and always discuss the provisions contained in those documents with you carefully and in detail so that you fully understand that implications of your advance directive.
It is never too soon to prepare a advance directive – do not assume that advance directives are only for old people only.
This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.
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