Live or Let Die

Recent headline court cases have revealed the agonising decisions that both families and judges have had to make in deciding whether to halt life sustaining medical treatment for individuals who were unable or did not give instructions to doctors themselves.  The rapid development of modern medicine has successfully saved and prolonged many lives but has also enabled lives to be sustained without any genuine hope of a meaningful recovery.  It is therefore increasingly important to put in place measures which will assist medical practitioners to make decisions that reflect your wishes concerning future medical treatment in the event that you lose your mental capacity because of, for example, dementia, mental health problems, stroke or head injuries.

Under the Mental Capacity Act 2005, there are two different ways of expressing such wishes in respect of future decision-making, only exercisable once mental capacity has been lost:

1. By making an Advanced Directive (commonly known as a Living Will) setting out advanced refusal of specific treatment; or

2. By appointing an attorney to give instructions to doctors on your behalf under a Lasting Power of Attorney for Health and Welfare (“LPA”).

What is an Advanced Directive (Living Will)?

This is a legal document in which you indicate to your doctors the specific circumstances when you would want life sustaining treatment to be withheld.

What is an LPA?

This is a legal document which allows you to appoint another person (there can be more than one) as your attorney to make decisions regarding life sustaining treatment on your behalf when you lack the mental capacity to make those decisions yourself.

Other decisions that your attorney can make include ones relating to general medical treatment, care, medication, where you live and even what clothes you wear and food you eat.

Which one is best for you?

Which is best for you will depend on your particular wishes and views relating to medical treatment but both have their advantages and disadvantages.  Living Wills are thought to be more conclusive than an LPA where the doctors can also take into consideration the views of other family members as well as your attorney (although your attorney’s views should carry greater weight). A Living Will takes away from your family the burden of having to make the difficult decisions as you will have already set out in your Living Will your instructions regarding withholding life sustaining treatment.  With an LPA your attorney has to make these difficult decisions.  However, Living Wills are restrictive as they will only cover the circumstances set out in the Living Will. In comparison, a LPA is far more flexible as it allows your attorney to make decisions regarding medical  treatment in any circumstances as well as allowing your attorney to make decisions on your behalf on other health and welfare issues.

Advice

Given the importance of the decisions involved, it is essential that you carefully consider your options when you are mentally able and if desired put in place the appropriate documentation.  Once you have lost mental capacity,  it will be too late.

This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 020 7404 0606 and ask for your usual Goodman Derrick contact.