Living Wills

Also known as advance directives, living wills are intended to allow individuals to specify the healthcare they would or would not find acceptable in the event they lose capacity. They are especially useful when made with lasting powers of attorney, since the person legally gives power to others (their attorneys) to carry out their wishes specific in the living will.

Under normal circumstances an adult has no right to demand a particular treatment but can refuse a treatment. This right to refuse treatment can be set out in writing in advance.

Following the Tony Bland case, the courts issued a practice note dealing with the procedure to be followed when an application is made to withdraw treatment prom a person in a persistent vegetative state and specified that any advance directions of the patient would be an important factor to consider, and the High Court may determine the effect of advance directives as to future medical treatment.

The Court of Appeal has held an advance refusal to be legally binding provided:

• The person had capacity at the time of making;
• A situation has arisen which was envisaged when the directive was made; and
• The person was not under any influence at the time the directive was made.

Advance decisions to refuse treatment

The Mental Capacity Act 2005 provides for an adult to make an advance decision to refuse specified medical treatment in future specified circumstances. The person must have mental capacity. Provided these provisions are made out, no liability will be made against the people refusing the treatment if they reasonably believe the advance decision to apply.

The advance decision may be modified or revoked at any time by the person who made it provided they have mental capacity. If the person who has made an advance decision later makes a lasting power of attorney giving express permission to the attorney to make decisions on such matters, the power of attorney will supersede the advance decision.

Drafting an effective advance decision is not easy because it is difficult to anticipate all the relevant circumstances that may apply. Even if such a decision has been made effectively it may be overridden by an emergency doctor who is not aware of it. The alternative is to give a health and welfare attorney power to accept or refuse life-sustaining treatment.

Your GP can also help give you advice on what your living will might include, but professional advice should be sought on the legal effect of these wishes at the same time.