Wills, Probate, Tax & Trusts Article
03 August, 2012
When planning for later life we should spare a thought for welfare. A recently published report suggests a third of acutely ill patients in hospital are not getting the best care and may be subjected to resuscitation attempts that prevent them dying with dignity. With that in mind the steps below set out how it is possible to have control over decisions relating to welfare when it is not possible to make or communicate them due to a lack of capacity.
A Living will and an Advanced Directive are the same thing, the health profession refer to them as an Advanced Directive and the legal profession usually refer to them a Living Will. The correct terminology is an Advanced Medical Decision created under the Mental Capacity Act 2005 previously governed by case law). In the most simplistic terms it is a written statement of wishes about medical treatment if a person becomes terminally ill or incapacitated.
It can be made by someone over the age of 18 who has mental capacity. They can be bespoke to a particular circumstance arising or in contemplation of particular treatment. A Solicitor will discuss what is it hoped will be achieved and will draft something that suits those needs.
A Living Will/Advanced Directive must be reviewed on a regular basis as treatment is constantly changing and it is important to update a living will to reflect this.
On a practical level the Living Will/Advanced Directive needs to be registered with a GP and or any consultant administering treatment. If at a later date a Welfare LPA is made the Living Will must be referred to so that it is not revoked by the Welfare LPA.
Whilst a Welfare LPA allows a choice to be made as to whether the medical profession or attorney(s) are able to make decisions about any life sustaining treatment is also confers a wider scope of authority. Also, like the Living Will, it can only be used if the person making the LPA no longer has the capacity to make or communicate a welfare decision.
Where capacity is an issue it is often difficult for doctors to know that consent is given, this often results in patients who have a loss of capacity only receiving life saving treatment and missing out on treatment that may positively impact on the quality of life.
Situations that may give rise to suggesting a Welfare LPA are as follows
Most importantly, and often overlooked, is a situation where social services may be involved through a parent or partner being in need of care, a Welfare LPA can give someone else the authority to make decisions about where they should live if care became necessary. This might involve the choice of care home, the type of care received or the choice of family member that the donor may wish to live with.
With the change in legislation it may prove more difficult to manage the welfare decisions under a document taken out to manage someone's financial affairs. There is a clear demarcation of areas of responsibility and in my experience health professionals are becoming more aware of the differences between the two.
What's the alternative? I suppose that depends upon what situation arises, for example, if it's a welfare decision about care or type of care it could result in an application to the court of protection for a welfare decision or a Deprivation of Liberty application. This could prove expensive at a time when a family is already under stress due to the issue at the heart of the conflict.
If it's in connection to life sustaining treatment it takes us back to the start of the article and the disturbing report about elderly people being prevent from dying with dignity.
There is no right or wrong way to plan for our future although I do believe it's important to have as many facts as possible to enable us to make informed decisions. Most solicitors would give you a no obligation appointment to talk through any questions you may to help you decide if any action was appropriate for you.
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