Do you know what an advanced decision is?
Advanced decisions are an area of law that is starting to rapidly develop and grow. An advanced decision might allow a person, whilst they still have capacity, to set out guidance/instruction regarding the future treatment they might receive in the event of deterioration in their health. For example, if an individual is suffering from dementia in the early stages of the disease that individual will still retain capacity and may recognise that the condition will deteriorate and may wish to give expressed decisions in advance of deterioration indicating which treatments he or she would want to refuse. It would also be possible to specify at what point you wanted certain decisions to come into effect, for example if you got to the point of not recognising immediate family members or did not recognise yourself.
In some instances individuals will create a Lasting Power of Attorney for health and welfare matters but because concern can arise as to whether your attorney’s will act on your instruction as contained with any Lasting Power of Attorney you may also wish to create an advanced decision document so that there is no doubt whatsoever as to your wishes about refusal of treatment. Advanced Decisions Notices can often be used to express wishes and beliefs as well as values and preferences, including spiritual views. They can indicate a preference for who should be involved in the decision and can name key individuals to be consulted.
The Mental Capacity Act of 2005 provided extensive framework for making decisions on behalf of people who lack capacity. There is a general principle in law and medical practice that people have the right to consent or refuse to treatment even where they lose capacity in the future even if that could result in death. This has been an underlying principle of common law which the Mental Capacity Act 2005 has sought to refine by statute and tries to give greater clarify as we the population begin to live longer and encounter conditions such as dementia with ever growing frequency. Any decision made on behalf of a person who lacks capacity are to be made in the best interests and it is important to understand that there is a difference between an advanced statement of wishes and an advanced decision document which may have more legal power than that of an advanced statement or expression of wishes.
There has recently been a development of an online tool known as ‘My living Will’ which aims to provide comprehensive information about advanced decisions and advanced statements. It goes as far as to allow people to create a personalised/individualised advanced decision and advanced statement regarding preferences and wishes and refusal of treatment if so desired.
It is particularly important to ensure that any advanced decision is made after any Lasting Power of Attorney insofar as it is understood that if the advanced decision is made before the Lasting Power of Attorney then an advanced decision is rendered null and void and replaced by a Lasting Power of Attorney. However, if the Lasting Power of Attorney for health and welfare is created and registered first then an advanced decision is relevant and valid. There are several advantages and disadvantages to advanced decisions versus Lasting Power of Attorney’s and vice versa and indeed there may be good reasons to create both. For example, a Lasting Power of Attorney could give your attorney the authority to make decisions about your care but an advanced decision could spell out exactly what treatments you would want to refuse in what circumstances and at what point in the stage of your illness. This can be particularly helpful where there is a disagreement between family members as to how treatment should be progressed. A Lasting Power of Attorney cannot be used until it has been registered with the Court of Protection so it not in effect valid until registered, whereas an advanced decision is valid once it has been signed and witnessed and we would be happy to assist you regarding the differences between Lasting Power of Attorney’s and Advanced Decisions and offer fixed prices for creation of such items.
Please contact our specialist Family Team Kerry Davies or her paralegal Amy Dawber for further advice in relation to this matter. 0800 919 231 We have offices at Lancaster, Kendal and Barrow-in-Furness