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Focus on Advance Decisions

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By Fiona Wright

Have you considered what medical treatment you would want to receive in the future if, at that time, you lacked the necessary understanding to decide? Although a very sensitive topic, this is something that we should all consider.

It is possible to make certain healthcare decisions in advance by signing a document known as an “Advance Decision" (formerly known as a "Living Will"). Your Advance Decision can make a legally binding statement which refuses your consent to specified medical treatments in the future, should you have lost the capacity to refuse consent to them.

It is important to bear in mind that it is not possible to make a legally binding request that you should receive a certain treatment in the future – just as a person with capacity cannot insist that they should receive a particular treatment. However, an Advance Decision can still be used to record your wishes about which treatments you would like to receive and these views can be taken into account by the healthcare professional providing your care.

Since October 2007, for an Advance Decision to be valid, it has to comply with the statutory requirements set out in the Mental Capacity Act 2005. For example, for your Advance Decision to validly refuse consent to life sustaining treatment, it must be made in writing and signed by you in the presence of a witness. It must also contain an explicit statement that you intend the Advance Decision to apply in a situation when your life is at risk.

Before deciding whether you wish to put an Advance Decision in place, you may wish to discuss your options with your doctor or other healthcare professional as they will be able to guide you on the potential treatments available. Our experienced Private Client team can help you to draft and Advance Decision which complies with all of the statutory requirements and expresses your wishes in the clearest possible terms.

Further, if you already have a Lasting Power of Attorney for Health and Welfare, or you intend to put one in place, expert legal advice will be essential to make sure that the two documents work together as you intend.

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