When you are unwell and unable to make your own decisions about your treatment or future care or to communicate these to your doctor, you are said to ‘lack capacity’. This may happen if, for example, you are involved in a road traffic accident, have a stroke or develop dementia. If you wish to refuse medical treatment or make other decisions about how you would like to be treated when you lack capacity, you need to make either an advance decision or an advance statement.
The term ‘living will’ doesn’t have a legal meaning, but can be used to refer to either an advance decision or an advance statement.
An advance decision allows you to indicate medical treatment that you want to refuse in the future, although you cannot make an advance decision refusing actions necessary to keep you comfortable, such as hygiene, warmth and food and drink by mouth. An advance decision to refuse treatment is the only type of living will that is legally binding, although it is not applicable if you have capacity to give or refuse consent for treatment at the relevant time.
An advance statement is a general statement of your wishes and views to cover any other decisions about how you would like to be treated. For example, you could specify your religious beliefs or food preferences. You could also specify who you would like to be consulted when a decision has to be made, if you lack capacity to make that decision yourself. Although an advance statement is not legally binding, it should be taken into account when deciding what is in your best interests.
If you make a Health and Welfare Lasting Power of Attorney (LPA), you can give your attorney(s) authority to make decisions about your future treatment if you lack capacity to make that decision yourself. You could even record an advance statement in the LPA document. If you create a Health and Welfare LPA after making an advance decision to refuse treatment, this will become invalid if the LPA gives your attorney(s) power to refuse medical treatment on your behalf. If you make an advance decision after creating a Health and Welfare LPA, this will overrule the LPA.
You may wish to make a living will if you have strong feelings about future medical treatment or a particular situation that could arise in the future.
An advance decision can be written or verbal, unless it deals with life-sustaining treatment, in which case it must be written and specific rules apply for the advance decision to be valid.
You may have already made an advance decision, but there may have been advances or changes to medical treatments or your circumstances may have changed. If an advance decision was signed a long time ago, it’s validity could be questioned. You should, therefore, ensure that you regularly review your advance decision and any advance statement to ensure that it still reflects your wishes.
If you would like to contact us for a chat without obligation, please ring Mrs Nicola Weldon on 01394 283241 or email her on firstname.lastname@example.org.
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