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Living Wills
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Living Wills (Advance Directives)
In the majority of cases where an individual is ill, they are able to discuss with their doctor the course of treatment they would like to take and mutually reach a decision about the treatment. It is a vital point of law that a mentally competent adult has to consent to medical treatment - it cannot be forced upon them.
However, there are instances where an individual will be unable to communicate their wishes to their doctor or a medical team. For example, if admitted to hospital there may be periods of unconsciousness or periods where the individual is unable to process information or understand the implications of certain procedures, namely, they lack mental capacity to be able to categorically agree or disagree with treatment to be rendered.
In these circumstances, a statement of that individual's wishes with regard to medical treatment is of vital importance and is known as an 'Advance Directive' or a 'Living Will'.
What is a Living Will?
The term 'Living Will' can be somewhat confusing, as the document which is prepared does not dispose of any assets of your estate or deal with any related issues such as inheritance tax planning. Therefore, it is often more appropriate to use the term 'Advance Directive'.
The primary purpose of an Advance Directive is to set forth your wishes and views, particularly in relation to medical treatment. The statement allows you to specify which treatment you would or would not like if, at any time in the future, you are unable to communicate your wishes or decide for yourself. An advance directive might also include any religious beliefs or values you may have and any aspects of life you value and feel to be of paramount importance. This 'value statement' assists the people caring for you to understand what is important to you and help them form judgments when rendering and deciding upon specific treatment.
In addition, the advance directive can nominate a person who you would like to be consulted as of when important decisions need to be made. It is important to note, that at present there is no legal requirement to insist on this consultation; however, it is most likely that the nominee will be consulted anyway, particularly where they are a close relative.
Format of a Living Will/Advance Directive
The Advance Directive document incorporates the wishes of a competent adult indicating their wishes to refuse all or some forms of medical treatment and the particular circumstances under which this refusal would apply. The directive then only comes into effect or can be relied on at the time when the individual is no longer able to communicate their wishes or able to decide for themselves. It is important to note, that whilst a competent adult may refuse medical treatment for any reason, no matter if that reason is irrational or not, there is no right to insist that a particular form of medical treatment be given; advance directives can only deal with refusals of treatment.
Criteria for Validity of the Advance Directive
In order to be valid, the Advance Directive needs to satisfy certain criteria;
- Person making and signing the document must be 18 or over.
- Person making the document must be mentally competent and no suffering the affects of mental distress at the time the document was drawn up.
- Must not have been influenced or harassed by anyone else when making the document.
- Must appear to have been fully informed about the treatment options and their implications when the advance directive was made.
- The Advance Directive must not have been modified either verbally or in writing since being signed and dated.
The directive should be dated and signed by at least one witness over the age of 18 and it is VITALLY IMPORTANT that this witness should not be a spouse, partner, relative or anyone else who stands to benefit from the ordinary Will.
Advance Directives and What they CAN'T Do
Certain requests CANNOT be made in an advance directive and these are;
- Ask for anything illegal such as euthanasia or help to commit suicide.
- Refuse the use of measures solely designed to improve comfort, such as pain relief
- Demand care with the healthcare professionals and doctors consider inappropriate in the circumstances of the case
- Refuse the offer of food and drink by mouth
- Refuse basic nursing care which serves to maintain reasonable comfort such as washing, bathing and mouth care
Who should be Consulted?
It is advisable before making an advance directive that your intentions be discussed with a medical professional and family and friends. The medical professional can help you understand the implications of certain refusals of treatment and help you set out your intentions clearly, as well as being able to verify that you have the required mental competence.
A regular review of the advance directive should be made. This will help the medical professional involved in your care to be clear that you have not changed your mind, and explain any new medical procedures etc. The statement should be signed and dated after every review. How often the statement is reviewed depends on your particular circumstances and state of health. It is also advised that the statement be kept with your medical records and it is suggested that a copy be kept with your Will as well.
