THERE'S a good chance you have heard of living wills or even advance directives, which are essentially two names for the same thing.
Equally, you may have experience of a friend or relative who is so ill that they no longer seem to have any quality of life. This often causes people to fear that advances in medical techniques will mean that their life could be prolonged when their quality of life has become unacceptable to them. What is surprising is how few people then record these feelings in an advance directive.
The aim of an advance directive is to share the views of the individual with the medical profession if the individual cannot do so, either due to mental incapacity or an inability to communicate.
In England, advance directives in accordance with the requirements of the Mental Capacity Act 2005 are legally enforceable and must be followed by the healthcare professionals. The situation is Scotland is more complex because the 2005 act does not apply.
However, anyone over 16 in Scotland can have an advance directive, which is likely to be binding, provided it is properly drafted and signed and that the person signing the document was not pressurised or influenced to do so.
In Scotland, the Adults with Incapacity (Scotland) Act 2000 allows an adult to appoint a welfare attorney, a proxy decision-maker who is given powers, after that adult's incapacity, to make welfare decisions on his or her behalf. This will generally include decisions on medical treatment and research.
An advance directive is a record of past wishes and the 2000 act requires an attorney to take into account past and present wishes of the adult. As the attorney must be consulted about treatment decisions (unless it is unreasonable or impractical to do so), the attorney can then instruct the healthcare professionals in accordance with the terms of the advance directive.
Only an appointed welfare attorney can refuse treatment on behalf on the patient. Relatives do not have this power but under the 2000 act, doctors must take their views into account when determining treatment.
Careful drafting of an advance directive is clearly vital and the medical profession recommends that a solicitor is involved. The advance directive must contain a clear and unequivocal consent to or refusal of treatment that is applicable to the patient's specific circumstances at the time that treatment is envisaged. Otherwise the healthcare professional can ignore it.
The healthcare professional must also check for any evidence that the opinions of the patient have changed since the document was prepared. If any exists, they can ignore the advance directive.
It is important that an advance directive is reviewed regularly to ensure that it continues to reflect the individual's feelings and circumstances.
However, healthcare practitioners are not required to ask whether a patient has signed an advance directive or to search for one. The final document should therefore be safely stored with the individual's will and a copy given to their GP. In addition, family or friends and particularly the welfare attorney should know about the advance directive and where it can be found.
All documentation – whether it is a will to apply on death or an advance directive to apply during life – must be properly executed and regularly reviewed. If you know how you wish to be cared for, take time to record those feelings.
• Glen Gilson is head of private client and financial services at HBJ Gateley Wareing
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