It is not uncommon for us to be asked to prepare an Advance Decision (AD) document, which is sometimes known as a Living Will. An AD is a document in which someone sets out their wishes in relation to medical treatment in certain circumstances. For example a Jehovah’s Witness might state in an AD that they would not want a blood transfusion, under any circumstances. For others it might be that they don’t want life sustaining treatment to be given, in certain circumstances.
The purpose of an AD is that it should take effect, if the decision maker (DM) lacks capacity to give specific instructions, to their medical team, in those circumstances. It shouldn’t matter when the AD was made provided that the DM had capacity to sign the AD at the time that it was made. However, a recent case, (Re PW (Jehovah’s Witness: Validity of Advance Decision), Re  EWCOP 52) indicates that ADs should be reviewed and confirmed from time to time, to make it clear that they are still intended to take effect.
On the face of it, an AD will be valid unless:
• It has been withdrawn by the DM at a time when they had capacity to do so.
• The DM has made a more recent Lasting Power of Attorney (health and welfare) in which they give their attorneys authority to make decisions in relation to matters covered by the AD.
• The DM has done something else clearly inconsistent with the AD remaining in place.
In the case referred to above, the judge decided that the DM’s behaviour was inconsistent with the AD remaining effective due to the fact that she had put in place a Lasting Power of Attorney, without limiting the attorneys’ authority and had failed to carry out a review of her AD over a 20 year period.
If you have an AD, we would recommend that you set up a regular review process or perhaps consider putting in place a Lasting Power of Attorney (health and welfare) as an alternative, authorising attorneys to make these and other decisions on your behalf. This adds to the flexibility of the arrangement, provided you trust your attorneys to carry out your wishes. You would then just need to keep your attorneys updated as to your wishes, in relation to your treatment in certain circumstances.
If you are looking to put in place a Lasting Power of Attorney (health and welfare) for other reasons and already have an AD which you want to keep in place, then it is important that you draw this to attention of the person preparing your Lasting Power of Attorney for you. They will need to make it clear within the document that the AD is still to have legal effect and your attorneys have no authority in relation to those matters referred to in the AD.
If you need any advice in relation to Advance Decisions or Lasting Powers of Attorney please contact Vicky Bligh.