Living Wills

The subject of end-of-life care has again been thrown into sharp focus of late, largely because of the discussion around the Assisted Dying Bill’s progress. If the Bill becomes law, then individuals will be allowed to end their own lives if they meet certain criteria, such as being over 18 and having the mental capacity to make a clear, settled and informed choice.

The proposals are not uncontroversial, and the government has been criticised for potentially watering down some of the safeguards. Originally, it was envisaged that a High Court Judge would have to approve the request, but instead MPs have agreed to adopt a three person “panel” approach, comprising a senior legal figure, a psychiatrist and a social worker.

The Bill is presently undergoing committee scrutiny before a further vote of MPs and even if the Bill does become law here, it is unlikely to be implemented for at least two and possibly four years.   

So, with the law unlikely to change soon, what options are available now to take control of life and death decisions?

In England and Wales, these fall into two categories: Living Wills (which fall within the definition of ‘Advance Decisions’) and Lasting Powers of Attorney for Health and Welfare.

Just as you can give or refuse consent to medical treatment so long as you retain mental capacity, you can also make the decision in advance for the time when you no longer have it (even if this is temporary). Both are binding, having been given legal status by the Mental Capacity Act 2005. If you don’t want a binding alternative, you can instead make an advance statement of wishes and care preferences.

The differences between the binding options are as follows:

Living Wills

An advance decision to refuse treatment lets you choose in advance which medical treatments you do or do not want doctors to administer should you not have capacity to express this at the relevant time. The term ‘advance decision’ can be quite broad in scope and may cover lots of decisions and preferences.  The ‘Living Will’ is a type of advance decision, used to specifically refuse medical treatment.

Any refusal of life-sustaining treatment must be in writing, signed and dated in the presence of a witness, as well as containing a statement that the decision is to apply even if your life is at risk. Life-sustaining treatment may include being given food or drink by tube, chemotherapy, re-starting your heart or CPR. A Living Will should be specific and detailed, as a general wish to refuse treatment is insufficient.

Who should have a copy of a Living Will?

It is important to ensure medical professionals and close family have copies of the signed document. It is sensible to keep a record of who has a copy. If you think your Living Will might be challenged for lack of mental capacity, it may be possible to ask a doctor or a medical professional with the appropriate qualifications to sign a statement confirming that, in their opinion, you do have the necessary capacity.

What if I change my mind?

You can cancel a Living Will at any time whilst you have mental capacity. If cancelled, the original and all copies should be destroyed to avoid the risk of any confusion. If not in writing, an advance decision can be cancelled verbally.

A Living Will should also be kept under review in light of medical advances. The best way to update a Living Will is to make a new one, revoke or cancel the previous document and ensure that those who hold a copy are notified and supplied with a copy of the new one.

Lasting Power of Attorney for Health and Welfare

The 2005 Mental Capacity Act made it possible to appoint an attorney or attorneys to make decisions of your behalf both in respect of property and financial affairs but also for health and welfare.

There is a prescribed form for each type of Lasting Power of Attorney. A ‘Certificate Provider’ must sign to confirm you have the capacity to appoint the attorney/s and are not being forced to grant the power.

The completed document must be registered by the Office of the Public Guardian before it can be used, and the donor must lack the mental capacity to make the specific decision in question. 

When making a Health and Welfare LPA, it is mandatory to choose whether or not to give your attorney/s the ability to give or refuse consent to life-sustaining treatment on your behalf. There is also space within the forms which allows you to set out further instructions, such as specifying any medical conditions which may give rise to the refusal of treatment on your behalf.

How do Living Wills and Lasting Powers of Attorney for Health and Welfare interact?

Many people make both a Living Will and a Health and Welfare LPA. The latter can also cover care decisions, such as a preference to be cared for at home and who should be consulted about your care. By contrast, a Living Will is limited to the refusal of medical treatment.

Be careful, though, as whichever is signed last takes precedence. So, by way of example, if the Lasting Power of Attorney is made second, where the attorney/s have been given authority to make decisions over the same treatment as the prior Living Will, the Living Will is invalid. For this reason, it is usually better to create both documents at the same time.