Too often we take choice and control for granted yet when illness strikes, we may not have the ability to freely express our wishes.
It is a general principle of both law and medical practice that people have the right to consent to or refuse treatment even if they lose capacity in the future, and even if this results in their death. This general principle in common law has been clarified and refined in statute under the Mental Capacity Act 2005.
The law gives us all the right to choice and control over our lives even if we lose the ability to make our own decisions. An Advance (Medical) Decision (AMD), sometimes known as a Living Will, is a decision you can make now to refuse a specific type of treatment at some time in the future.
An AMD is legally binding as long as it is validly made and will only then apply when you are no longer able to make your own decisions that is to say in legal terms when you lack mental capacity. An AMD must be specific about which treatments you wish to refuse and in what circumstance.
With an AMD in place you will have peace of mind that if you are unable to make or communicate your decisions yourself, your doctors, carers and other healthcare professionals looking after you must follow and respect your wishes expressed in the document. It also enables you to make your family aware of your wishes.
It is important to say that you have the final say on who sees your AMD but you should make sure that your family, carers or healthcare and social care professionals know about it, and know where to find it. A copy of the document should ideally be kept with your medical records.
The relationship between the AMD and a Lasting Power of Attorney (LPA) for Health and Welfare is quite complex. It is possible to make both an AMD and a LPA for Health and Welfare though the order in which they are made is important to ensure that both are valid. If the AMD is made before the LPA then the AMD is rendered null and void. There are advantages and disadvantages of both an AMD and a LPA for Health and Welfare. For example, the LPA must be registered with the Court of protection to be valid whilst the AMD is valid once it has been signed and witnessed. It is therefore important to get full advice to enable you to decide which is most appropriate for your circumstances and to fulfil your wishes.
For advice on making an AMD and to explore further the relationship between the AMD and the LPA for Health and Welfare please contact our Wills & Estates team on 01562 820575.