An advance decision (also known as an Advance Directive or Living Will) is a legal way for someone to decide ahead of time what life-sustaining/ life-saving medical treatment they would not want in the future.
Someone wishing to make an Advance Directive needs to write it down, sign it and have it witnessed. It is legally binding as long as it complies with the Mental Capacity Act, in other words, as long as you have the mental capacity to write and sign the Advance Directive in the full knowledge of its implications. The document must explain clearly what treatments are to be refused and under what circumstances. For example, if you want to refuse treatment that might result in death, then this needs to be stated clearly. If the Advance Directive is binding it takes the place of decisions made in the best interests of the patient by other people, such as doctors or relatives.
An Advance Directive enables an individual to think about what they would like to happen to them in the event that they lose the capacity to take informed decisions about their care, examples of which include: the use of intravenous fluids or medication, the use of resuscitation, the use of life-saving treatment in specific illnesses where capacity or consent may be impaired (such as brain damage, head injury, stroke or dementia), specific procedures such as blood transfusions for Jehovah’s Witnesses.
An Advance Directive cannot be used to ask for specific medical treatment, request something that is illegal, choose someone to make decisions for you, unless that person has been given lasting power of attorney, or refuse treatment for a mental health condition (doctors are empowered to treat such conditions under Part 4 of the Mental Health Act).
The clinical team needs to be aware that such a provision exists. It could be recorded in your or your relatives medical notes (forms available here). Alternatively, a directive may have a healthcare proxy, an individual who may also have ‘lasting power of attorney’. The role of the proxy is to ensure that the wishes of the person are carried out. The proxy does not have the power to make decisions and the wishes of the patient may not be over-ruled. As with a will, an Advance Directive does not have to be drawn up by a solicitor, however it is recommended that legal advice is sought. It is also recommended that it be signed by two witnesses (preferably people who will not benefit from the estate) as well as the author. An Advance Directive can be rescinded – cancelled – or updated at any time, but as with a will, all old agreements should be destroyed.
It is recommended that careful thought and discussions take place with family members about the content of such a directive before any commitment is made.
If you’re thinking about an Advance Directive or Living Wills, you should also consider power of attorney.
Have you got experience of an Advance Directive? please share your experience on our Age Space Forum.