Which one - Advanced directive or Lasting power of attorney - The Law House Family Law Solicitors, London & Peterborough

Which one – Advanced directive or Lasting power of attorney


Developments in medical science mean more lives are now saved then ever before, but it could also mean that we live longer in poorer heath with no real hope of a full recovery. The objectives of preservation of life and the provision of a quality of life can give rise to conflict.

For many the freedom to live as you choose extends to the freedom to die as you choose….
There is a difficult balancing act of views at a distressing time between you, your families and your healthcare team, many of whom will have sworn an oath to preserve and protect life at all costs.

It is accepted that competent and informed adults who are capable of understanding the implications of their decisions have an established legal right in common law to refuse medical procedures or treatment.

However, how can this accepted right be exercised when you have lost the mental capacity or the physical ability to give such instructions…..?

1.  Under the Mental Capacity Act 2005, it is recognised that individuals may wish to:
2.  leave an Advanced Directive stating their advanced refusal of specific treatment or 3.  Appoint attorneys to speak for them when they no longer can under a Lasting Power of Attorney in relation to Personal Welfare.

Which is better? Which option has more chance of enabling your wishes in regard to your future treatment or healthcare to be adhered to? The answer, like the question, is not simple…

What is an Advanced Directive?
Every competent individual has a right to refuse treatment or to state circumstances in which they would not wish treatment to be offered to them In the event that this does not include treatment with the potential to be life sustaining, this can be successfully discussed with your GP or other medical practitioner and formally recorded in the notes. This will be sufficient to record your objection to the proposed treatment should the need arise. As it is not life sustaining, it is likely that the practitioner will be able to find an alternative treatment that you do not object to.
It is also recognised that such wishes can be formally recorded in an Advanced Directive (“the Directive”). This is if you had a previous Directive and subsequently make an LPA in relation to Personal Welfare expressly authorising your attorneys to make decisions in regard to life sustaining treatment, the Directive is revoked and the decision rests with your chosen attorneys.
Conversely if you have a valid LPA expressly authorising your attorneys to make such decisions and you subsequently make a Directive, the Directive will deal with the issue of refusing life sustaining treatment provided that it is valid and applicable to the specific treatment or circumstances at hand. The later Directive revokes the attorneys authority to make such decisions.

BEST ADVICE – COMBINE THE TWO!
1.  Create an LPA limited to making other personal welfare decisions and expressly exclude the ability to make decisions in regard to life sustaining treatment.
2.  Make an Advanced Directive whilst you are mentally fit, in accordance with s.25 Mental Capacity Act 2005, register it with the doctor, and discuss it fully with your family members. Use a recognised precedent and get your GP to approve terms and to make a note in your medical notes that you have understood the significance of your Directive which could assist in the event of a dispute in the future. This way, decisions regarding the refusal of life sustaining treatment are yours. It is not subject to any subjective interpretation of your wishes by an adversely pressured and distressed attorney and will be treated as direct instructions from you even if you are incapacitated at the time.
3.  Keep your arrangements under review. Remember that Directives can be overruled if there are reasonable grounds to believe that you have changed your mind – make sure that all relevant parties know that you have not diary entries, GP notes, Care Plan, Social worker but most of all keep your family updated as to you wishes. If they are aware that they are acting in accordance with your wishes, this may assist them at an unenviably distressing time.