You may not have heard of an Advance Decision before but they’re a very powerful document for anyone who has strong feelings about what medical treatment they would want to receive, and would want to make sure that their wishes were followed even if they were in a state where they couldn’t make treatment decisions for themselves.
These documents are commonly also referred to as a ‘Living Will’. Don’t be mislead by that term though, these documents are nothing to do with your Will and can’t be used to deal with your assets. They are solely for decisions about your medical treatment.
What can an Advance Decision do?
An Advance Decision is a means of making sure your family and the professionals providing treatment to you know what your personal wishes for that treatment are even when you are unable to inform them yourself. This may be because you have lost capacity as a result of an illness such as dementia, or even due to a temporary lack of consciousness brought about by an accident.
If you feel strongly that you would not want to receive particular types of treatment in certain situations then this can be included in your Advance Decision. If you then find yourself in a situation that your Advance Decision applies to, a doctor would not be able to provide that treatment to you. A common example would be a person who would like to refuse blood products because of their religious beliefs.
What can’t an Advance Decision do?
You can’t use an Advance Decision to request certain types of treatment. While everyone has the right to refuse treatment, even if it results in their death, no one has the right to insist on a particular treatment.
While you can refuse treatment accepting that this refusal will result in your death, you can’t use this type of document to ask or encourage someone to actually help you end your life. Assisted suicide is illegal in England & Wales.
Are they legally binding?
As long as they are drafted and signed correctly, and actually apply to the situation you are in at the time the decision to administer treatment needs to be made, Advance Decisions are legally binding. To make one you need to have mental capacity to make these kinds of decisions and you need to be over 18.
To make sure your Advance Decision is legally binding it also needs to meet the following requirements:
- It must be in writing and signed by you.
- If it makes decisions about refusing life sustaining treatment it also needs to be signed by an independent witness – someone who has no interest in your estate, and include a statement that you wish the Advance Decision to apply even if your life is at risk.
- It must clearly state what treatment you would refuse and in what circumstances it applies.
We would always advise that you seek advice from a professional when making an Advance Decision rather than trying to draft it yourself. This way you can be sure that it will be drafted correctly.
The last requirement is that for it to apply you can’t have said or done anything while you still had capacity that contradicted the statements you’d made in the Advance Decision. This isn’t something that can be accounted for within the Advance Decision itself of course, but it does mean that it’s best practice to frequently review your document. Some drafters will include a ‘review’ section on the last page where you can sign and date your Advance Decision at regular intervals to confirm that you’ve reviewed it and you are still happy with it.
Anything else I need to know?
We’ve already said that an Advance Decision is a powerful document, but it’s not of much use to you if no one knows it exists. We strongly recommend that a copy is given to your doctor to place on your medical records so they are aware of it if you need any treatment. We also recommend that you make your family aware of it as well and discuss it with them, although this may be difficult.
Our previous article on the case of Brenda Grant highlights just how important this is, and you can find it here: https://www.willwriters.com/blog/family-receive-pay-hospital-fail-act-accordance-advance-directive/
22nd July 2021 at 12:25 pm
So, this sits outside the scope of a Health & Welfare Power of Attorney?
22nd July 2021 at 1:59 pm
Hi Nigel, it does yes. It helps to think of a H&W LPA as giving others the right to make treatment decisions as though they were you, but an Advance Decision as you actually making the decisions yourself.