How to Manage Your End-of-Life Care

You may wish to have control of your future medical treatment when you have lost mental capacity and cannot make your own decisions regarding your Will. 

What is an advance decision? 

An advance decision, if valid and applicable, is a legally binding document that can be created by a person who decides to refuse the giving or continuing of specific medical treatment if, in the future or at the time of the treatment, they have lost the relevant mental capacity to be able to consent to it. 

 The rules governing advance decisions are in Sections 24 – 26 of the Mental Capacity Act 2005 (MCA 2005). Prior to the Act, advance decisions were commonly known as advance directives or living wills. 

• Provides certainty that a decision maker's wishes will be followed when they have lost mental capacity.
• A record of a decision-makers wishes which can still be considered by a healthcare professional even if the advance decision is not valid.
• Has immediate effect if urgent action is required, for example, if incapacity of a person is forthcoming.
• Can work in conjunction with a Health and Welfare Lasting Power of Attorney.

The advance decision will have effect as if the person had made it at the time with the relevant capacity.

A healthcare professional will no longer need to consider if any specified treatment is in the best interests of the decision maker, if an advance decision has been made, and will not be liable for holding back or withdrawing the treatment.

Suppose an advance decision is created after a Health and Welfare Lasting Power of Attorney. In that case, an advance decision will take priority over any decisions made by your attorneys (so far as they conflict with the advanced decision) concerning your healthcare.

To have effect, a decision-maker must not:

• Withdraw an advance decision whilst the decision-maker still has the relevant mental capacity, and
• Make a Lasting Power of Attorney for Health and Welfare (which usually invalidates an advance decision) to give your attorney(s) the legal authority to refuse or give specific medical treatment.

The effect of an advance decision made before the MCA 2005

If made before 1st October 2007 (when the MCA 2005 came into force), an advance decision will be determined by the common law rules before the Act came into force, which reflects the current legal position of the MCA 2005.

An advance decision can be made either orally or in writing. The Mental Capacity Act 2005 Code of Practice's recommendations provide guidance regarding what should be included in an advance decision.

If the decision is to life-sustaining treatment, additional requirements must be followed; for example, it must be in writing, signed by a decision-maker and witness and include a verification statement.