If you do not have mental capacity, whether due to dementia, stroke or an accident, then your doctors are under an obligation (ethical and legal) to act in your ‘best interests’. The only exception to this is if you have an advance decision refusing treatment in place. As long as this document is valid and applicable to your current medical condition, then the doctors must accept it as an instruction for treatment.
An advance statement, however, is not legally binding and only needs to be ‘taken into account’ by medical professionals. It is mainly used to give a more general statement and guidance about your preferred care and treatment, i.e. if you have religious beliefs that alter what kind of treatment you receive.
The Mental Capacity Act of 2005 introduced a Lasting Power of Attorney (LPA) for health and welfare, which allows a person to appoint an attorney to make decisions concerning their care and treatment if they are unable to do so themselves.
Clients will need to seek advice if an LPA has been made before or after a living will, as in many cases the earlier document will no longer be applicable. Likewise, the Mental Capacity Act also has implications for living wills that relate to life sustaining treatment made prior to October 2007.
If you have a living will then speak to our specialist consultant to discuss whether it is still valid.