Advanced Decision Documents in Relation to One’s Personal Affairs

There has recently been press articles in respect of documents known as ‘Advanced Decisions’ we suspect because of the onset of Covid 19 and the complications they cause.

An Advanced Decision document is often referred to as a ‘Living Will’.

Do not be misled as these documents are as we referred to commonly known as ‘Living Will’. This term is often misleading as these documents have nothing to do with your will and cannot be used to deal with your assets. These documents are solely for decisions about your medical treatment.

An Advanced Decision document is therefore a very powerful document for anybody who has strong feelings about what medical treatment they would want to receive, and who would want to make sure that their wishes were followed, even if they were in a state where they could make treatment decisions for themselves.

An Advanced Decision is a means of making sure your family and the professionals providing treatment to you, know what your personal wishes to that treatment are, even when you are unable to inform them yourself. This maybe because you have lost capacity as a result of an illness, such as dementia, or even due to a temporarily lack of consciousness brought about by an accident.

If you feel strongly that you would not want to receive particular types of treatment in certain situations, then this can be included in your advanced decision. If you then find yourself in a situation that your Advanced Decision applies to, a doctor would not be able to provide you with that treatment. A common example would be a person who would like to refuse blood products because of their religious beliefs.

There are certain restrictions on what this document cannot do. You cannot use this document to request certain types of treatments. While everybody has the right to refuse treatment, even if it results in their death, no one has the right to insist on a particular treatment.

While you can refuse treatment accepting that this refusal will result in your death, you cannot use this type of document to ask or encourage somebody to actually help you end your life. Assisted suicide is illegal in England and Wales.

These documents have to be dealt with carefully in order to be legally binding. These Advanced Decisions are legally binding. To make one you need to have mental capacity to make these kinds of decisions, and you need to the over 18.

To make sure your Advanced Decision is legally binding, it also needs to meet the following requirements.

It must be in writing and signed by you.

If it makes decisions about refusing life to sustaining treatment, it also needs to be signed by a witness – somebody who has no interest in your estate, and a include a statement that you wish the advanced decision to apply, even if your life is at risk.

It must clearly state what treatment you would refuse, and it what circumstances it applies.

It is very important that you seek professional advice in creating an Advanced Decision document, rather than trying to draft is yourself, and this way you can ensures that the document has been drafted correctly and will apply in the circumstances that you dictate.

There is a further requirement that people are not often aware of in these types of situations. For the Advanced Decision document to apply, you cannot have said or done anything whilst you still had capacity that contradicts the statements you have made in the Advanced Decision.  This is not something that can be accounted for within the advanced decision itself of course, but it does mean that if you wish, and we recommend that you frequently review this document.

As a policy, we as a firm will include what is known as a ‘review’ section on the last page, where you can sign and date your Advanced Decision at regular intervals, to confirm that you have reviewed it and you are still happy for it to stand. We have a system whereby each year this will be sent to you for signature and return.

We also recommend very strongly that you give a copy to your doctor, and any other medical practitioners which you have service of. They should place it in their medical records, so that they are aware of it if you need any treatment. We also recommend that when you do the Advance decision document, you let a family member have a copy, and make them aware of it as well and discuss it with them, although we appreciate this can sometimes be very sensitive and difficult.

If you need advice please contact us.