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‘Living Wills’: a modern solution to a modern problem

By Andrew Williams, Private Client team

Medicine has become unrecognisable in the last 100 years; thankfully we no longer rely on leeches to cure headaches and have better means of pain relief than simply putting a knife under the bed to ‘cut the pain in half’!

However, medical enhancements and developments bring with them a new set of problems and dilemmas: how long is it desirable to live for? Who decides about what is an acceptable quality of life and, if we are all living longer, is that always a good thing? Should we in effect have a right to die?

The courts are seeing more and more cases where the debate rages one way and the other. Who can tell a parent to allow their child to die? And who should tell an adult that they are obliged to live? We hope not to have to make these decisions but with our ageing population, more and more of us are going to have to. If you would like to be able to choose what happens to you, then one of the ways available to you is to put in place a ‘Living Will’ .

A Living Will (also known as an Advanced Directive) is a written document, which sets out in advance the kind of medical treatment a person may or may not wish to receive, in the event that they are:

  • Unconscious, and it is unlikely that they will ever regain consciousness; or
  • Suffering from a terminal or irreversible condition, which will result in their death within a relatively short time; or
  • So severely disabled (physically or mentally) that they would be totally dependent on others for the rest of their life.

They must also subsequently be incapable of giving or refusing consent or of communicating that decision.

An advance refusal of medical treatment made by an informed patient of full mental capacity may be as effective as the current decision of a capable adult. It is very important that wishes about future medical treatment are clearly expressed, in order that they may be carried out in the future. The Court of Appeal has held that if a refusal of life-saving treatment is to be legally binding, then the patient must:

  • Have capacity to make that decision;
  • Not be influenced by others;
  • Have understood the nature and effects of treatment; and
  • Have considered the actual situation in which treatment may be needed.

In short, the patient must have considered the possibility that s/he may die as a result of refusing treatment.

The British Medical Association has acknowledged that, when an informed and competent patient makes an advance decision to refuse specific treatment that would otherwise have been given later, that refusal will be legally binding on doctors.

A Living Will can state that you want to refuse any medical or surgical treatment if:

  • Its burdens and risks outweigh its potential benefits; or
  • It involves any research or experimentation that is likely to be of little or no therapeutic value to you; or
  • It would needlessly prolong your life or postpone the actual moment of your death, with no further benefit to you.

In addition, you can consent to any treatment that may safeguard your dignity, relieve pain and suffering or make you more comfortable, although this treatment may unintentionally precipitate your death.

It is worth noting that Living Wills are not the same as Lasting Powers of Attorney (LPA). LPAs are very different documents, as they enable you to delegate decision-making powers to one or more attorneys, who will act on your behalf. There are two different types of LPA for making provisions for the future:

  • Property and Affairs LPA: this allows you to choose someone you trust to make decisions about how you spend your money and the way in which your property and financial affairs are managed, including paying your bills; dealing with your investments; collecting your income and benefits and even selling your house, subject to any restrictions or conditions. Once registered (and unless you have put a restriction on the document), this type of LPA can be used by your attorney(s) straight away. This might be easier for lots of reasons: you might find it difficult to get about or to talk on the telephone, or you might be out of the country for long periods of time. Even after making an LPA, you can still carry on making decisions, providing that you have the capacity to do so.
  • Personal Welfare LPA: this allows you to choose someone to make decisions on your behalf relating to your personal healthcare and welfare including decisions to give or refuse consent to medical treatment (including life-sustaining treatment) and deciding where you live. These decisions can only be taken on your behalf when the LPA has been registered and you lack the capacity to make the necessary decisions for yourself, for example, if you were ill, unconscious or because of the onset of a condition such as Alzheimer’s or Dementia.

For further information, please contact Andrew D Williams on 0117 904 5930 or by email at: awilliams@lyonsdavidson.co.uk.

The purpose of this article is to highlight some common issues and concerns regarding this area of the law. It should not be taken as providing legal advice and should not be relied on as doing so.

Posted on Dec 12th, 2011 by Lyons Davidson