What is an Advanced Directive?

We would always recommend that you write up a Lasting Power of Attorney for your future health and care decisions, meaning you can appoint Attorneys to make decisions on your behalf should you lose capacity in the future. 

It is also advisable to consider an Advanced Directive, which can be used in conjunction with an LPA to specify the treatment you wish to have should something specific happen to you, for example if you have a stroke, or your wishes to refuse life sustaining treatment.  In this situation, you may not be in the position to make a decision as to the treatments you have, and so under an LPA your Attorneys would make that decision.

Here we explain more about the differences between an Advanced Directive and LPA to help you understand which may be most appropriate for you.

What is an Advanced Directive?

Every competent individual has a right to refuse treatment or to state circumstances in which they would not wish treatment to be offered to them.  

In the event that this does not include potentially life sustaining treatment, this can be successfully discussed with your GP or other medical practitioner and formally recorded in your notes. This will be sufficient to record your objection to the proposed treatment should the need arise. As it is not life sustaining, it is likely that the practitioner will be able to find an alternative treatment that you do not object to.

It is also recognised that such wishes can be formally recorded in an Advanced Directive, where your refusal of certain specific treatments or circumstances in which you would not want treatment to be offered are set out.

In the case of Advance Directives to refuse life sustaining treatment, the Directive has to comply with certain formalities. If this includes a refusal of specific treatment or a refusal of treatment in stated circumstances which will, inevitably lead to death, the Directive must be in writing, enclose a statement confirming your understanding that you will die as a result of your refusal and be signed and witnessed.

Will the Advanced Directive be binding?

If, at the appropriate time, the doctor believes all of the following statements to be correct then the Directive is binding and will be followed:

  • the Directive is valid
  • it is applicable to the specific treatment being proposed or circumstances at hand
  • there is no evidence to suggest that you have changed your mind.

What is a Lasting Power of Attorney (“LPA”) in relation to health and care decisions?

An LPA allows you to appoint one or more attorneys to take decisions on your behalf in relation to your health and social care. Such decisions can range from what to wear, eat and where to live to expressly authorising your Attorneys to either consent or to refuse life sustaining treatment. You can choose any individual(s) who you would like to act as your Attorneys, provided you trust that they will always act in your best interests and adhere to your wishes.

‘Life sustaining treatment’ has no formal definition other than any treatment which is considered necessary to keep you alive. Such a simple definition therefore has wide application.  For example, to refuse being treated with insulin will be potentially fatal to a diabetic.

If expressly authorised in the LPA in the prescribed form, your Attorneys will have the responsibility of deciding whether to consent to or refuse any treatment that is required to keep you alive provided that they believe that this decision is in your ‘best interests’.

Your Attorneys are obliged to act in your best interests in whatever decision they take on your behalf. This means that they must consider a number of factors ranging from any views that you may previously have expressed, likelihood of any recovery or sustainable recovery and views of other individuals interested in your care, such as healthcare professionals and family members.  All of these factors have to be evaluated by your Attorneys before deciding whether to consent or to refuse life sustaining treatment.

However, whilst your attorneys must consider such factors, it is still their decision as to what they consider is in your best interests. Ultimately they can still be over ruled by doctors responsible for the healthcare.

Which one has precedence; Advanced Directive or LPA?

A Directive in existence prior to the 1st October 2007 (the introduction of the Mental Capacity Act 2005) should be reviewed to ensure that if a treatment that is likely to be life sustaining has been refused, a written statement accepting these risks has also been included and that it has been signed and witnessed in accordance with s.25 Mental Capacity Act 2005.

There is a risk that a so called ‘living will’ – particularly if home made – will no longer be effective following the introduction of the Mental Capacity Act.

If you had a previous Directive and subsequently make an LPA in relation to health and care decisions expressly authorising your Attorneys to make decisions in regard to life sustaining treatment, the Directive is revoked and the decision rests with your chosen Attorneys.

Conversely if you have a valid LPA expressly authorising your Attorneys to make such decisions and you subsequently make a Directive, the Directive will deal with the issue of refusing life sustaining treatment provided that it is valid and applicable to the specific treatment or circumstances at hand. The later Directive revokes the attorneys’ authority to make such decisions.

As you can see there are many factors to consider when deciding whether to have an Advanced Directive or an LPA.  If you are unsure as to the best option for you, we would be happy to discuss this with you and advise as to the most appropriate course to suit you and your family.  In some situations it may be best to have both documents working in conjunction:

  1. Create an LPA limited to making other personal welfare decisions and expressly exclude the ability to make decisions in regard to life sustaining treatment. 
  2. Make an Advanced Directive whilst you are mentally fit, in accordance with s.25 Mental Capacity Act 2005, register it with the doctor, and discuss it fully with your family members. Use a recognised precedent and request your GP to approve terms and to make a note in your medical notes that you have understood the significance of your Directive which could assist in the event of a dispute in the future. This way, decisions regarding the refusal of life sustaining treatment are yours. It is not subject to any subjective interpretation of your wishes by an adversely pressured and distressed attorney and will be treated as direct instructions from you even if you are incapacitated at the time.
  3. Keep your arrangements under review. It is important to regularly review your Advanced Decision and to keep a written record that you have reviewed your Advanced Directive and that it still meets with your requirements and to sign and date this. Remember that Directives can be overruled if there are reasonable grounds to believe that you have changed your mind.  Ensure that all relevant parties know that you have not through the use of your written record, diary entries, GP notes, care plan, your discussions with social workers but most of all keep your family updated as to your wishes. If they are aware that they are acting in accordance with your wishes, this may assist them at a distressing time.

Making a decision of this nature will be an important one, and one that should be made with the input of your family to ensure they are aware of your wishes and they can be discussed at the time.  To make an appointment to discuss your options with one of our expert Solicitors, you can contact Justine Alexander on 01329 222075 or email privateclientenquiry@warnergoodman.co.uk.

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