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Most of us understand the purpose and importance of both Wills and Lasting Powers of Attorney for Health and Welfare Decisions (LPAs). However, there is often confusion about what an ‘Advance Decision’ (sometimes also called an ‘Advance Directive’ or ‘Living Will’) means. In particular, how do they differ from LPAs?
What is an Advance Decision?
Providing you have mental capacity, you have the legal right to either:
- refuse medical treatment altogether; or
- to set out the specific circumstances in which you would not wish to undergo medical treatment,
even if this will lead to your death.
These wishes can be discussed with your GP and recorded in your medical records. However, many people now choose to record their wishes in a formal document called an Advance Decision, which is legally binding and must be honoured by medical professionals.
See also: What is mental capacity?
What are the formalities for making an Advance Decision?
As you might expect, if your Advance Decision includes a refusal to receive life-sustaining treatment, it must comply with certain formalities to be legally binding. Those include:
- You must be 18 or over.
- At the time of making your Advance Decision, you must have mental capacity to make the decisions that it records.
- It must be in writing, signed by you and witnessed.
- You must say what treatments you wish to refuse.
- You should record the circumstances in which you wish the refusal of treatment to apply.
- It must include a statement confirming that you understand you will die as a result of your refusal. The law emphasises this as particularly important, as it demonstrates that you have considered your decisions and understand the consequences.
To make it binding, you must strictly follow all formalities and use specific language. For that reason, you should always take legal advice.
Will doctors always follow an Advance Decision?
There are some situations where a doctor does not need to follow your advance decision. These include:
- If you have subsequently cancelled your Advance Decision.
- If you have regained capacity.
- If you have requested a specific type of medical treatment, you can record your preference in a document. Healthcare professionals should consider this, but it is not legally binding, unlike a decision to refuse treatment. Therefore, a healthcare professional is not legally obliged to follow it.
- If it is unclear in your Advance Decision which kind of treatment you intend to refuse.
- If you have appointed an attorney under an LPA and granted them the authority to make the same decisions or refusals regarding anything specific you have outlined in your advance decision.
- If there has been a change in circumstances since making your advance decision, you may not be able to make the same decision now. This might include new advances in medical treatment and improved medication.
- If you are detained under the Mental Health Act and receiving treatment for a mental health problem.
Mental Capacity Act 2005
Review any Advanced Decision made before 1 October 2007 to ensure it complies with the Mental Capacity Act 2005.
Advanced Decision versus LPA
Advance Decisions and LPAs are similar documents. However, with an LPA, your attorneys must make decisions based on what they believe to be in your best interests. If a doctor considers that an attorney is not acting in your best interests, they can refuse to follow the attorney’s decision.
Crucially, when it comes to decisions about life-sustaining treatment, Advanced Decisions and LPAs revoke each other, with the most recent one taking precedence.