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An advance medical decision, often referred to as an 'advance directive' or 'Living Will', is a written statement of your wishes about medical treatment if you become terminally ill or incapacitated.
An advance medical decision allows a person to refuse specified treatment in specified circumstances such as: -
- Physical illness which is so serious that life is nearing an end and there is no likelihood of recovery;
- Permanent serious mental impairment with physical illness and/or
- Permanent unconsciousness
You are completely free to refuse to undergo medical treatment even if, as a result, it brings about your death. However, you must have the mental capacity to make that decision. The Mental Capacity Act 2005 gives clear legal status to advance medical decisions, which means that health professionals must follow them, if they are valid and applicable to the specified treatment and circumstances.
It is important that an advance medical decision is well drafted so it is valid and applicable to the specified treatment and circumstances. You should discuss your wishes with your immediate family. The document is not intended to be a substitute for discussion with medical staff and it is always recommended that you talk fully with your doctor about your treatment. An advance medical decision does not ask a doctor to do anything against existing law, but it is useful when decisions have to be made on prolonging an individual's life.
An advance medical decision will be valid if:
- You have the mental capacity to make the decision to refuse treatment
- Your refusal was intended to apply in the kind of situation which later arose
- You understood fully the consequences of such decision in that kind of situation and
- There was no undue influence made by anyone else on your decision
If you change your mind at a later date, an advance medical decision is not final and irrevocable and can therefore be changed by telling your doctor. However it is sensible to destroy the document and all copies of it.
If you have made an Advance Medical Decision and wish to make a Lasting Power of Attorney: Health and Welfare, you must be careful that they do not cancel each other out.
If you wish your Attorneys to make decisions about Life Sustaining treatment, then you should sign Option A on the LPAHW form. This will override your Advance Medical Decision. If you subsequently make an Advance Medical Decision it will take priority over your LPA. A health and welfare LPA made after an advance decision will make the advance decision invalid if the LPA gives the attorney authority to make decisions about the same treatment.
If you do not want your Attorneys to make such decisions and would rather your Advance Medical Decision stands, you should sign Option B on the LPAHW form stating that you do not wish your Attorneys to make these decisions on your behalf. Your Advance Medical Decision will take priority.
Where a person makes a health and welfare LPA (regardless of whether it provides authority to give or refuse consent to life-sustaining treatment) and subsequently makes an advance decision, which is valid and applicable in the circumstances, the advance decision takes priority.
Please contact a member of our Private client team at any of our offices to discuss your personal circumstances.