End of life care wishes

We are all thinking more about our health at the moment and you may be concerned over how your wishes might be followed if the worst should happen and you are unable to make you own decisions regarding your treatment and care.  Many people have strong feelings about the sort of care and treatment they would like to receive - or avoid - if they cannot make decisions for themselves or if they are at the end of their lives.  

It is a common misconception that relatives or next of kin can always make healthcare decisions on the behalf of a loved one who cannot make such decisions for themselves.  This is not necessarily the case.  Care providers may discuss the patient’s wishes with family members, but they are under an obligation to act in the best interests of their patient even if this appears contrary to what that patient would have wished or what their family want.

However, there are documents you can put in place which, if created validly and registered (if applicable) are legally binding on medical practitioners and care providers.  This allows the people you nominate control over healthcare and welfare decisions if you do not have mental capacity to decide for yourself.  There are further documents which, whilst they are not legally binding, give guidance as to what you would have wanted.

Lasting Power of Attorney for Health and Welfare

A Lasting Power of Attorney (Health and Welfare) allows you (the ‘donor’) to choose one or more people (your ‘attorneys’) to make decisions on your behalf should you be unable to do so for yourself. If you ever lose mental capacity to make decisions about your care, health and welfare yourself, your attorneys can make decisions for you that you could have make for yourself were you able provided they are acting in your best interests.  This could include whether to refuse certain treatments, where you would like to live, whether you would wish to remain at home rather than in a care home, and so on.  Obviously you should have complete trust in your attorneys and be comfortable that they will follow your wishes or make best interests decisions on your behalf.

A very important part of the LPA (Health and Welfare) concerns whether or not you would like your attorneys to be able to make decisions about your end of life care – for example whether to withdraw life sustaining treatment.  This is a very important decision and ideally one that you should discuss it your chosen attorneys beforehand so that they understand what your wishes are or might be.   

Once your LPA (Health and Welfare) has been registered, it can be used in the event that you lose mental capacity to make decisions for yourself.  The process of registration takes around twelve to fifteen weeks.  Once registered it remains in place until or unless the donor revokes it by deed.  You should keep your LPA under review to ensure that nothing has changed. 

Advance Decision

An advance decision (also known as a Living Will) is a document that records any medical treatments that you do not want to be given in the future in case you later become unable to make or communicate decisions for yourself.  An advance decision is, if made correctly, a legally binding document.  There is no particular format for advance decisions.  However, the person making the advance decision must be over 18 and the document must be signed and witnessed. 

An advance decision is not as flexible as an LPA as it must refer to specific circumstances and to specific treatment. You cannot use an advance decision to request a specific treatment, only to refuse it.   

An advance decision is commonly used to refuse life sustaining treatment however, it is important to set out what that life sustaining treatment actually is.  Life sustaining treatment could be ventilation, cardiopulmonary resuscitation or antibiotics.  It could also be artificial hydration or nutrition.  You may want to refuse some of these treatments, but not others, and so the advance decision must set out which of these you would not want to receive.   It is a good idea to make an advance decision with collaboration between your legal advisor and your doctor. 

Once made, you should place a copy of your advance decision with your GP or healthcare team, if possible, and should certainly make sure that your close relatives are aware of the existence and location of the document.  There is currently no national system to register advanced decisions.

An advance decision will not be followed if:  

• you verbally withdraw it,
• you make a later LPA,
• the decision is not specifically covered by the document, or
• if healthcare professionals are unaware of its existence.  It will also only be used if the patient does not have mental capacity to make their own decisions or cannot effectively communicate their decisions.

Advanced Care Plans, Advance Statements

These are more informal documents containing information about your wishes regarding future care.  They will not be legally binding upon healthcare providers, but will carry weight if and when best interests decisions are being made on your behalf.  They can be verbal, but for ease are best written down.  

If you would like to discuss your options further, please do not hesitate to contact Caroline Farmer, director of the Private Client department, on 01242 574244.