Living Wills, Advanced Decisions, Capacity and Care
There is still a grey area in the UK with regards to Living Wills. These are non-binding documents and a person can put whatever they want in them. They can detail what care they would want if they were to become mentally incapable and can also include religious beliefs, what type of personal care they would want, and the people they would want to look after them.
Quite often, a copy of a Living Will is placed with an ordinary Will and also with the person’s GP. If there is a Living Will in place then any medical team should take it into account even though it is not legally binding.
An alternative would be to make a document called an “Advanced Decision” or an “Advanced Directive”. These documents must be written and signed and witnessed. They can contain instructions to refuse treatment. When making such a document, the person needs to be fully compos mentis and clear as to what they wish to achieve from the document. For example, it may say that the person would wish to refuse pain relief, interventions, needles etc. However, one should bear in mind that specific treatment cannot be requested and it is not possible to override a medical professional’s opinion.
Under Section 24-26 of the Mental Capacity Act 2005, Advanced Decisions can only refuse treatment. One of the criteria provides that no illegal actions, for example attempted or assisted suicide, can be included in the document. Understandably, it is illegal to assist anybody with suicide and if a person is believed to have encouraged or assisted another, then it is a crime and subject to 14 years imprisonment. Prosecution is more likely if a person is under the age of 18 years or if the assister has been paid.
An Advanced Care Plan is a central record of documents usually put into place by a hospital or care home. These are often put in place for a person who is terminally ill.
Palliative Care is for quality of life and life threatening illnesses. Again, these Plans can be put into place for end of life care or if a person is likely to die within 12 months of being diagnosed.
Whichever Plan is put into place, care should be taken when writing them. For example, a person may say that if they are diagnosed with Cancer he/she does not want to be treated. At the time of writing the Plan the person may not have Cancer but, say, in 5 years time, he/she has developed Cancer and has since married and has children, then these are totally different circumstances and he/she may not have the mental capacity to change the original Plan. Therefore, Living Wills or Advanced Decisions should be reviewed every few years to reflect circumstances and medical views.
A Lasting Power of Attorney for Health and Welfare is more flexible for planning and may be a better way of expressing wishes should a person become mentally incapable although, again, care must be taken as to the instructions contained in the document.
If a person lacks mental capacity and there is no Lasting Power of Attorney for Health and Welfare in place, then it may be possible to approach the Court of Protection for a Deputyship Order. However, the Court of Protection are reluctant to grant these types of Orders and may only do so when a series of decisions need to be made and it is the only way they can be dealt with.
For legal advice in completing Lasting Powers of Attorney for Health and Welfare or for Deputyship Orders, please contact one of the Private Client Department team at Adams Harrison.
