The term “living will” can be confusing because such a document has no connection with ordinary wills. “Living will” is a generic term which is now accepted as referring to an advance decision which is legally binding.
An advance decision sets out the person’s wishes about the kind of medical treatment they wish to receive, and even the refusal to certain treatments, should they not have the capacity to express their views at a later date.
Advance decisions to refuse treatment
A mentally capable adult has no right to demand a particular treatment but has the right to refuse any medical treatment.
The Mental Capacity Act 2005 recognises that this right extends to a decision to refuse treatment made in advance if a situation later arises which was envisaged when that advance decision was made.
Provided that the provisions mentioned in the advance decision apply to the particular circumstances encountered by those supplying treatment, it will be as if the client had capacity to refuse that treatment.
As a result, medical practitioners will not be liable for complying with the advance decision to refuse treatment if they believe the advance decision to apply, even if such action results in the client’s death.
The advance decision must be as clear as possible about what types of treatment the person wishes to refuse, though precise medical terminology is not necessary. The decision does not need to be in writing, though there are obvious advantages to doing so, unless the decision is to refuse life- sustaining treatment. These decisions must be written and signed by the client and witnessed.
For example, If, during a conversation with their doctor, a patient with capacity says that they would not want joint replacement surgery, that decision will be legally valid; but if they say that they would not want to be given fluid intravenously in order to keep them alive, that would not be valid unless it was also put in writing, signed and witnessed.
There are also limitations to what you can include in an advance decision, for example, it cannot:
Promote or facilitate suicide or euthanasia
Refuse basic care, such as warmth and shelter
Refuse food and drink by mouth
Demand care the doctors consider inappropriate
Advance decisions and Lasting Powers of Attorney
The relationship between an advance decision and health and welfare LPAs is a little complex because a situation could arise where the two documents contradict each other and the issue of which one should prevail arises.
It is normally the case that the advance decision that will remain valid despite the presence of the LPA. However, there is an important exception in that under the Mental Capacity Act 2005, where an advance decision will not be valid if the maker has, ‘under a LPA created after the advance decision was made, conferred authority on the donee (or, if more than one, any of them) to give or refuse consent to the treatment to which the advance decision relates.’
Only an LPA which addresses the same medical care covered in the advance decision will replace the advance decision.
For example, if a client makes an advance decision refusing life-sustaining treatment after making an LPA giving an attorney power to decide whether to accept the treatment or not, then the advance decision will prevail. However, if the advance decision was made before the LPA, then the attorney would have the power to decide whether to consent to or refuse the treatment, provided that the LPA covers the same medical care as that mentioned in the advance decision. If the LPA does not do so, then the earlier advance decision will prevail over the LPA.
It is also important to note that if you are comparing the respective dates of an advance decision and a LPA for this purpose, then the date that an LPA is created is the date of its registration, not the date that it was signed.
Important information for the client:
It is a good idea for the client to discuss the contents of their Advance Decision document with their GP.
It is advisable that the original signed document is copied and the whereabouts of the original made known to the most important people in the client’s life.
Storing the Advance Decision - It is advised that a COPY is lodged with the clients GP and also, where possible, with the local hospital or other locations that the client considers might benefit from knowing their wishes. In an emergency, the medical team will need to be aware of the document’s existence and have immediate access to it.
Reviewing the Advance Decision - It is important that the client regularly reviews their advanced decision to ensure it continues to reflect their wishes in the light of medical advances, continued health and welfare, and personal wishes, all of which change or develop over time.
Revocation - An advance decision can be revoked by the client, provided that they have capacity to do so. If they do revoke a written advance decision, they would be wise to ensure all copies are destroyed like you would with a revoked Will.
Source - Charlotte Merrills APS Legal & Associates - September 2021
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