I am often asked “What are Living Wills?”
It would seem there is confusion about whether it is your Will that you do whilst you are alive leaving your assets to people or whether it is something else. So I thought perhaps it might be sensible to set the record straight!
A Living Will, Advance Directive, Advance Statement are all the same thing. Since the introduction of the Mental Capacity Act in 2005 these names have now been rolled into one, an Advanced Medical Decision.
An Advanced Medical Decision is a written statement containing details of medical treatment that are to apply if a person becomes terminally ill or mentally incapacitated. It must be made when a you are over eighteen and have capacity. It can be as detailed as you wish. The document applies to circumstances which may arise in the future at a time when you lack capacity to make decisions for yourself.
The Advanced Medical Decision protects your autonomy, allowing you to rely on it for medical treatment in accordance with your wishes and provides a voice at a time when you may go unheard. It protects your dignity and privacy and gives you the power of planning how you want to grow old; whether it is gracefully or disgracefully!
Prior to the introduction of the Mental Capacity Act 2005, there was no legislation which established rules and regulations for making Advanced Medical Decisions. Rules and regulations were contained only in case law. This is now enshrined in the Mental Capacity Act which confirmed that an Advanced Medical Decision must be:
• In writing
• Signed by the person making the Advanced Medical Directive or by another person at their direction in the presence of witnesses
• Witnessed by another person in the presence of the person making the Advanced Medical Decision
Medical professionals will consider the document to be valid if it has been signed in accordance with the above criteria and has not been revoked. An Advanced Medical Decision does not always have to be in writing however. It is equally possible for verbal statements to be considered.
It is not wise to prepare and sign an Advanced Medical Decision without keeping it under review. As we all know, the world of medical science advances quickly and what was the most effective treatment at the time the Advanced Medical Decision was made may not be when treatment is required.
Caution must be exercised, however, in relation to life sustaining treatment. An oral statement is not sufficient for these purposes. Where wishes relate to treatment that would sustain life these must be written and signed in accordance with the criteria above.
With the introduction of the Mental Capacity Act 2005 and Health & Welfare Lasting Powers of Attorney, many thought the use of Advanced Medical Decisions would decline. We regularly advise clients on not only making a Health & Welfare Lasting Power of Attorney but also an Advanced Medical Decision to accompany and compliment the Lasting Power. This is particularly the case where clients have specific wishes in relation to specific conditions and want to be able to react to changes in medical treatment through the use of the Advanced Medical Decision.
Whichever document you choose to make either would be preferable to neither. Just make sure you have a voice when you need one but cannot make yourself heard.
For further advice, guidance and support contact us – it’s what we do.
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Published by Kelly Duke 12 May 2016