Advance Decisions Solicitors

What is an Advance Decision?

An Advance Decision (sometimes referred to as a Living Will) is a legal method of medical intervention. If you are worried that you may lose the capacity to make decisions for yourself later in life, this Advance Decision has to be respected by medical professionals as you wrote your wishes when you had the capacity to do so and so serves your best interests. A copy of an Advance Decision should be left with your medical records, as well as leaving copies with your family and personal documents

An Advance Decision can only take into account medical and healthcare decisions. It does not cover social care, living arrangements and so on. You can decide future aspects of your healthcare such as the switching off of life-support or if there are any treatments that you do not wish to go through.

An Advance Decision will come into effect once communication is no longer possible. If you are concerned about future mental capacity you should seek the advice of a Court of Protection solicitor about making one of these statements. By using a professional to help you, we can ensure that you are covered as much as possible for possible future amendments. For example, even if you do not want current treatment that is available, you may want allowances for medical treatments that are developed in the future.

What Should an Advance Decision Include?

To make an Advance Decision legally binding and valid it must adhere to certain criteria. To be able to create an Advance Decision you have to be aged 18 years or older and have the capacity to do so. It should then:

• Specify treatment you wish to refuse - this does not have to be written using specialist terms or knowledge. You should also make it clear when these refusals should come into effect.
• Not have been modified since it was made (this applies to both verbal and written modifications).
• Have been made without the influence or harassment of someone else.
• If you wish to refuse life-sustaining treatment, your Advance Decision must be in writing and be signed and witnessed. Refusals of life-sustaining treatment should also expressly state that the decision stands ‘even if life is at risk’.

A decision does not necessarily have to be in writing, it can be verbal as long as it is witnessed. However, we would recommend that you put it in writing as it reduces and doubts or disputes over your wishes and if you wish to refuse life-sustaining treatment, this must be put in writing and witnessed.

You should also bear in mind that you cannot use an Advance Decision to appoint someone else to make decisions on your behalf, or request that your life be ended. If you are unsure about any requests our Court of Protection Solicitors will ensure that you know what can be included.

Is it Possible a Doctor Wouldn't Follow an Advance Decision?

An Advance Decision must be followed by a medical professional, otherwise the matter could be taken to court. If you disagree with a doctor's assessment you should make sure to discuss the treatment options with them so that they can weigh up all the best course of action.

However, there are specific circumstances which may result in a doctor not following the decision, these include:

• Cases where the Advance Decision does not make it sufficiently clear what should happen.
• Where current circumstances (for example a medical development) would have affected the person’s decision.
• Where the person has been treated under the Mental Health Act.
• Where the person has acted in a way which is inconsistent with the Advance Decision and which may affect its validity – for example where the person’s religious faith has changed in some way.
• Where there is a doubt about the validity of an Advance Decision and the case has therefore been referred to the Court, doctors are permitted to treat the patient based on their best professional judgement.