Advance Decisions – what you need to know

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Any fans of BBC’s The Split will have seen the appearance of a Private Client lawyer in the last episode of the most recent series (who knew Private Client law was so glamorous?!), brought in to assist a client put in place a document known as an Advance Decision, or Advance Decision to Refuse Treatment (commonly known as a “Living Will”). 

My colleagues, Felicity John and Libby Wardle, have each recently written articles discussing Enduring Powers of Attorney (EPA) and Lasting Powers of Attorney (LPA). An Advance Decision is a perhaps less well-known document, also given official status by the Mental Capacity Act 2005, to empower people to indicate their wishes at a time when they cannot communicate decisions themselves. 

An Advance Decision allows family and health care professionals to know your wishes about future treatment, and circumstances in which you would wish treatment to be refused, in a situation where you are unable to make these decisions yourself. Provided the Advance Decision is validly created, complies with the Mental Capacity Act and clearly specifies and explains the circumstances in which you would want to refuse life sustaining treatment, the document will be legally binding. This can be very comforting to those who, for example, have been diagnosed with degenerating or progressive illnesses, as depicted in The Split. The Code of Practice (provided by the Mental Capacity Act) sets out what it is helpful to include, such as your name and address of your GP. To be validly created the writer must be over the age of 18, have mental capacity at the time of writing, and the document should be signed and dated. It is also necessary for the signature to be witnessed if the Advance Decision refuses life sustaining treatment. 

Clearly, careful consideration needs to be given to the document, and as much detail should be included as possible. Care is needed if an Advance Decision is created alongside a Lasting Power of Attorney for Health and Welfare. Donors giving attorneys authority under an LPA for Health and Welfare can extend that authority to making decisions regarding life sustaining treatment. Effectively, you are asking your attorneys to decide your treatments on your behalf (whilst acting in your best interest and following the Code of Practice). This can conflict with any instructions you include in an Advance Decision, and so the general rule of thumb is that the later signed document takes priority when a decision needs to be made about treatment. This can however result in fettering your attorney’s discretion. For example, if the Advance Decision is created after the LPA, your attorney will not be able to consent to any treatment refused in the Advance Decision, regardless of any change in circumstances. You may wish the Advance Decision to sit alongside your LPA, giving your attorney guidance as to your wishes, in which case you may be happy for the LPA to take priority. One option is for your wishes to be included within the LPA as either instructions or preferences, or another approach is to draft the LPA and Advance Decision simultaneously and date these on the same day. 

Key differences

The key difference between a Health and Welfare Lasting Power and an Advance Decision is that the LPA delegates decision making to your attorneys, whereas an Advance Decision is an expression of your preferences. It is also important to understand that there is a big difference in law between removing life support from someone and taking some measure to hasten their death.

A side effect of the medical advancements that we have seen in recent decades is the ability to keep people alive, or for death to be avoided, through medical intervention and support, which itself has led to concerns about the ethics and cost of maintaining life in circumstances where there is no chance of recovery or meaningful life.

How Moore Barlow can help

If you would like advice about putting in place either a Lasting Power of Attorney or Advance Decision, please get in touch with our private wealth team.

Sophie Pollard