An advance directive (or advance decision) is defined on the NHS Choices website as:
'(Sometimes known as an advance decision to refuse treatment, an ADRT, or a living will) is a decision you can make now to refuse a specific type of treatment at some time in the future. It lets your family, carers and health professionals know your wishes about refusing treatment if you're unable to make or communicate those decisions yourself. The treatments you're deciding to refuse must all be named in the advance decision. You may want to refuse a treatment in some situations, but not others. If this is the case, you need to be clear about all the circumstances in which you want to refuse this treatment.'
The directive must be in writing, signed and witnessed. It is legally binding if it complies with the Mental Capacity Act 2005, it applies to the situation in hand and is valid.
In 2012, a lady who had prepared an advance directive had a devastating stroke. Her directive set out the circumstances where she did not want life prolonging treatment. Unfortunately for the lady in question and her family, the hospital mislaid her directive and she was fed and kept artificially alive for two years before she died. This treatment was in direct contravention of her directive which laid down that she should not receive life prolonging treatment in such circumstances. Her family have recently received a payment of £45,000.
The poignant aspect of this case is that the lady made the directive precisely because she wanted to avoid the prospect of losing her faculties, which she had experienced when she watched the slow demise of her mother through dementia.
Having a will and a living will prepared by a solicitor can help to ensure that these important documents are properly and appropriately stored. Many people choose to leave their will with their solicitor but this will only be obtained after death. If someone makes an advance directive, a solicitor can assist with ensuring that the contents of the document, which may need to be considered during someone's lifetime, can reach the correct recipients such as the GP, family members and hospital. It is important to ensure that medical records are noted accordingly.
To discuss this or any other wills related issue, contact us.