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Advice

How can I have control over my medical treatment if I have lost capacity?

If made validly and correctly, an advance decision allows for assurance of dignity and that wishes will be followed if capacity is lost.

The importance of making lasting powers of attorney (“LPAs”) is well known, and practitioners encourage clients to make LPAs, especially where they are making or updating a will.

Planning for health decisions seems to be less often discussed than planning for financial decisions, however both aspects of our lives are equally important. Having control over our lifestyle whilst we are alive is essential, but it is also important to a lot of people to have some control over their death, where possible. An advance decision (sometimes known as a living will or advance directive) allows an individual to have that control.  

What is an advance decision and how does it work alongside an LPA for health and welfare decisions?

Decisions relating to health can be strengthened by making an advance decision to sit alongside an LPA for health and welfare decisions. An advance decision is a legally binding document and is effective immediately once signed, provided it meets certain requirements and if an advance decision is ignored by a healthcare professional (provided they knew about the existence of it), they could be taken to Court. It is important however to ensure that the wishes expressed in the advance decision and LPA do not conflict with each other.

An advance decision allows an individual to specify medical treatments that they wish to refuse in future, if they have lost the capacity to communicate this at the time the treatment is required. It lets family, healthcare professionals and carers know the specific wishes and legal instructions of an individual in relation to their healthcare treatment. advance decisions are used to refuse treatments such as CPR, ventilation, being given food or fluids through a drip or tube, receiving antibiotics for a life-threatening infection.

An LPA dealing with health and welfare decisions may be sufficient on its own for some people. However, attorneys under an LPA must act in the donor’s best interests when making decisions on their behalf. Some people may feel strongly that they wish to refuse certain treatments in certain circumstances, and they do not want this decision to be challenged on the grounds that refusal is not in their best interests. In this case, a valid advance decision would allow for refusal of such treatment without dispute that it is not in the best interests of the decision maker. 

If made validly and correctly, an advance decision allows for assurance of dignity and that wishes will be followed if capacity is lost and decisions can no longer be communicated, and also means that family members do not have to make guesses as to the wishes of loved ones in respect of their medical treatment.

It is important to note that an advance decision cannot be used to demand certain treatments that may not be medically appropriate for that individual; it cannot be used to ask someone to help with assisted suicide and it cannot be used to refuse food or fluids by mouth or to refuse basic healthcare.

If you would like to create an advance decision or lasting power of attorney, or review how an advance decision can work alongside your existing lasting power of attorney, please contact our wills, trusts and estates team.

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