Preparing for end of life with an Advance Decision, also known as a “living will” - Lewis & Dick Solicitors

• 20th January 2022
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Solicitors in older client law regularly advise across a broad range of matters when making decisions about later life. This includes making Lasting Powers of Attorney, estate planning and in some cases the Advance Decision to Refuse Treatment (ADRT). An Advance Decision is commonly known as a ‘living will’ and allows you to express your wishes to refuse medical treatment in future. 

Discussing an Advance Decision with loved ones

To avoid confusion and distress for loved ones, it’s advisable to discuss concerns and fears about end-of-life care and set in place an Advance Decision if necessary. This allows the individual and their family and friends to plan and prepare for the worst-case scenario.

Advance Decision vs Lasting Power of Attorney

It can be easy to confuse the difference between an Advance Decision and a Health and Welfare Lasting Power of Attorney (LPA). Both take affect when a person loses mental capacity and is unable to make medical and care decisions for themselves, however, an Advance Decision is specific as to which treatment/s you wish to refuse and under what specific circumstances. A health and welfare LPA on the other hand allows you to choose an attorney/s to make these decisions for you when you no longer have mental capacity – decisions that you have not pre-empted.

If a person decides to create a Lasting Power of Attorney (LPA) for health and welfare after the Advance Decision was made and conferred authority on the attorney(s) to give or refuse consent to the treatment to which the Advance Decision relates to, then the LPA takes precedence. However, if the Advance Decision was made after the LPA, it may override the attorney(s) decision.
 

Making an Advance Decision

An Advance Decision comes into effect during your lifetime if you lose mental capacity to make your own medical decisions. It’s advisable to make a written Advance Decision to make sure that your wishes for end-of-life care are clearly set out, especially regarding the refusal, carrying out or continuation of medical treatments that they could be subjected to in the future, should they lack mental capacity at the time to express these wishes. This document is very detailed and would have been written after discussion and consultation of a General Practitioner or other health care professionals involved in the delivery of one’s treatment and care. To ensure its legally binding, you must have mental capacity at the time, be over the age of 18 years old and clearly specify the treatments you wish to refuse and the circumstances of when this treatment should be refused.

The Advance Decision can only take effect once you have lost capacity, and only if it complies with the legally binding conditions. It won’t be needed if the person has capacity to give or refuse consent to their own treatment and can be withdrawn or altered at any point before a person loses capacity via oral or written consent. It should be kept up to date with the decision-makers current circumstances and medical notes. 

Interestingly, an ADRT cannot be utilised to compel a healthcare professional to provide for a specific form of treatment nor can it be used to refuse basic essential care, offered by a care provider, such as warmth, shelter, nutrition and hydration by mouth or assistance with maintaining personal hygiene. If a person is opposed to receiving artificial nutrition and hydration then the ADRT can be used to refuse it, as their delivery is recognised as being a form of medical treatment. Not least because their refusal is likely to result in a person’s death if it is followed. 

For the ADRT to remain fit for purpose and valid, it is imperative that it is reviewed and updated, to reflect changes in circumstances, treatments and wishes.

Talking to a specialist

When making life changing choices like an Advance Decision, it’s advisable to talk with a professional experienced in this area of law. SFE lawyers are trained to support older and vulnerable people making these difficult decisions and will be able to guide and advise you through the process, making it as stress-free as possible