Advanced Decision- (Formerly Living Will) What Is It And How Does It Apply?

Posted on 05 Mar 2019

“Living Will” is the old term for what is now referred to as an “Advanced Decision”.

The Mental Capacity Act 2005 (which came into force in 2007) ensured Advanced Decisions now have legally binding status. Living Wills prepared prior to 2007 remain non-binding unless they have been updated or re-signed since 2007.

An Advanced Decision sets out a person’s wishes surrounding the refusal of future medical treatment. Thus, if they:

(a) lost mental capacity and were
(b) unable to communicate their wishes regarding treatment refusal AND
(c) they were in such a medical state that there was no prospect of recovering past artificial living, permanent medical intervention or resuscitation,

then medics must respect the treatment refusals set out in the Advanced Decision. Even if the withdrawal results in that person’s death e.g. if in a coma with no prospect of recovery other than to remain in that coma with the assistance of life support.

An Advanced Decision can also set out treatments a person wished to accept in future; but medics cannot be bound to administer treatment and so that element of the Advanced Decision would remain non-enforceable.

Crucially, the fact an Advanced Decision is now legally binding means medics/hospitals can be prosecuted if they fail to comply with its terms. That means it is now more important than ever to ensure the Advanced Decision is carefully and professionally drafted. Any ambiguity could result in that aspect of the Advanced Decision failing or at the very least, would provide a legitimate defence to it not being followed.

Medics could however, be bound to accept and administer treatments under a Health and Welfare Lasting Power of Attorney, which, once registered, is a document that enables another person to make medical decisions as if it were the patient; but only at a time when the patient can no longer make decisions for themselves. So, if a person didn’t have specific or strong enough wishes to set out treatment refusals early, they could prepare a Health & Welfare Lasting Power of Attorney and provide Attorneys with the flexibility to make and refuse treatment on their behalf in future, depending on prevailing circumstances at the time.

Such decisions under a Health & Welfare Lasting Power of Attorney could even extend to who is allowed to visit the patient; their diet; their dress; their ongoing medication etc. Where a person has both an Advanced Decision and a Health & Welfare Power of Attorney in place, priority is given to the document signed/registered second.

If you have prepared both documents in the past and are not sure which document may take priority, it could be worthwhile to seek professional opinion.

Jennifer Howell is an experienced Solicitor specifically trained in all aspects of estate planning such as the preparation of new Wills, drafting and administration of Trusts, tax implications, estate administration, executors’ duties, claims against an estate and testator capacity issues.