Documenting your wishes
If you would like more information on how you can ensure your wishes are followed should anything happen, contact our Private Client team for an initial consultation on 01284 767766.
What is an Advance Decision?
An Advance Decision provides you with the opportunity to make clear in writing any treatments that you do or do not want to have in the future, in the unfortunate circumstance that you become unable to make or communicate decisions for yourself.
Such a Decision will only be used if you cannot make or communicate a decision for yourself. The full legal name is an Advance Decision to Refuse Treatment; also occasionally referred to as a ‘Living Will‘ or an ‘Advance Directive’.
Advance Decisions are legally binding in England and Wales, although certain requirements have to be met. The fact that they are legally binding means that, if a healthcare professional is aware you’ve made an Advance Decision, they have to follow it — if they choose to ignore an Advance Decision, that person could be taken to court.
It’s important to note that an Advance Decision is different from what is sometimes referred to as an ‘Advance Statement’ or ‘Expression of Wishes’.
Advance Decisions (Living Wills) vs LPAs
Some differences to consider…
|Advance Decision||Lasting Power of Attorney|
|When is it valid?||As soon as completed, signed and witnessed.||Only after being registered with OPG (4-6 weeks if no mistakes).|
|What does it cover?||Refusals of medical treatment, only applying to those referred to in the document.||Allows attorney to make any decision about your Health & Welfare, where you live, diet etc.|
|Who decides?||You. (Your own words).||Your attorney (acting as if they were you in making decisions) so element of trust should be very high.|
|How much?||Solicitor cost-based only (no added disbursement as with LPAs)||f82/LPA — but can be mitigated in certain circumstances (low-income means tested).|
It is possible to have both an Advance Decision and LPA for Health & Welfare. However, it is important to note that if you do make both, the document made more recently will take priority when a decision needs to be made to as to your treatment/care.
Let’s say you make an LPA after making an Advance Decision. Your attorney would then be able to override what’s contained in your Advance Decision (as long as the decision in question is contained in both). Your attorney won’t, however, be able to override a decision contained in both the Advance Directive and LPA if the Advance Decision was made after the LPA
If you have both an Advance Decision and an LPA, make sure that you tell your attorney about your Advance Decision and give them a copy.
What is an Advance Statement?
An Advance Statement (something also referred to as an ‘Expression of Wishes’) is a statement about anything that is important to you in connection with your future health treatment and welfare. Such a statement can be used to make clear your preferences for care and/or to express any values or beliefs you hold in view of any necessary treatment/s to be administered.
An Advance Statement helps to ensure that, if you are deemed mentally incapable and therefore lack capacity to deal with your own affairs in the future, your wishes are made known and adhered to.
Can anyone make one?
Advance Statements are an important part of planning for your future care, and anyone can make one. You do not have to be nearing the end of life to complete one. Completing an Advance Statement is entirely voluntary, so you do not have to write one unless you wish to do so.
Why have one?
If you can’t make a decision about your medical treatment, care or welfare then a healthcare professional will decide on your behalf. An Advance Statement will help to ensure that your wishes and beliefs etc. are taken into account when these decisions are made. This record of what you deem is most important to you, will assist the relevant person in making decisions that you would have wanted them to make.
Apart from anything else, thinking through and writing an Advance Statement/Expression of Wishes can also help to open a dialogue between you and your relatives/loved ones about your wishes for the future, helping to initiate what can sometimes be a difficult conversation.
Is an Advance Statement legally binding?
An Advance Statement is not legally binding (compare this to the Advance Decision discussed above). However, it does have legal standing because it must be taken into account when someone is deciding what is in your ‘best interests’.
Another point to consider in view of both Advance documents is that an Advance Decision only concerns refusals of medical treatment, whereas an Advance Statement can include any information that you feel is important in relation to your health or care.
The law on Advance Statements
Anyone who makes a decision on your behalf must act in your best interests, and when deciding what is in your best interests, the person making the decision must (non-exhaustive list):
- Consider your wishes and feelings (including anything said to others and also things you have written); and or Consider any values and beliefs that would be likely to influence the decision.
An Advance Statement must be considered when any action is taken on your behalf as such a Statement would constitute evidence of those wishes, preferences, values and beliefs.
Is it possible to make and use both Advance documents?
Yes. However, if you consider that there may be a situation/s in which you would not want a particular medical treatment then you should make an Advance Decision (or indeed LPA).
What can you include in an Advance Statement?
An Advance Statement (or ‘Expression of Wishes’) gives you the chance to say anything that is important to you. You can talk about any aspect of your life, health or care, such as:
- Information about your daily routine
- Any concerns you have around treatment or care
- Food/drink preferences
- Whether you would like to continue exercising and how often
- Whether you would like to keep your pets and how they are to be looked after
- Your religious or spiritual views
- Your preference over location of your care, if required (E.g., home, hospital or residential home)
You can also use it to specify any person(s) who you would like to be consulted when decisions are being made on your behalf. However, doing this does not mean that a health or care professional has to follow what that person says (as in an Advance Directive or Lasting Power of Attorney for Health and Welfare).
How do I make an Advance Statement?
It is a good idea to make clear in good time what is important to you in a way that is understandable to your family, friends etc. Ideally, you would also want to discuss your future care wishes with any healthcare professionals involved, e.g., your doctor. The clearer and sooner it is done, the easier it will be for those important wishes of yours to be followed.
It is possible to make an Advance Statement verbally, but it is better to put such decisions in writing. This would then provide a permanent record of your wishes and is less likely to be called into question in the future.
There are no formal guidelines for making an Advance Statement, but it is a good idea to write your name, date of birth and address on the document and sign and date it. Your personal information and signature both help to identify your wishes are yours alone (that are written down).
It’s never too late to get organised and ensure your loved ones understand your wishes. If you would like more information to understand the options available to you when making these wishes clear, contact our Private Client team today. We act for and support clients across London, Suffolk, Norfolk, Cambridgeshire and Essex. We have offices in Bury St Edmunds, Sudbury and London. Our team will be happy to arrange a consultation wherever you are. Get in touch today on 01284 767766.
© Atkins Dellow LLP 2022
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