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Why you now need a ‘living will’

Mr Justice Francis' call for the creation of living wills' to be made a national campaign alongside organ donation is anything but far-fetched, writes Eloise Power

Perhaps you've thought carefully about wealth management in later life.  Perhaps you've got an assured income, you've taken tax advice and you've got an effective plan for maximising your assets and managing inheritance. But have you given any thought to what you'll do about your own medical treatment if you lose capacity? If not, you're not alone.

Even though dementia is all too common – according to The Alzheimer’s Society, there’ll be over a million sufferers by 2025 - just 5 per cent of people in the UK have made a 'living will'. It is particularly surprising that this includes only 12 per cent of people over the age of 75 [1]. Although there isn’t any statistical information specific to HNWs, it seems likely from experience that the take-up of living wills is low among HNWs as well.

Living wills – properly known as advance decisions – are legally binding documents which enable adults to make an advance plan about medical treatment. Valid advance decisions are legally effective under section 26 of the Mental Capacity Act 2005 and the plan takes effect if the adult become unable to make his/her own decisions.

The low take-up of living wills has led to an increasing number of medical treatment disputes coming before the courts, in which relatives and doctors fight about what treatment should be provided to a patient who lacks capacity. These cases often raise crucial life-and-death issues: should artificial nutrition be provided to a terminally ill patient? Should a patient be subjected to invasive procedures such as a tracheostomy or a PEG? Should a patient be subjected to painful cardio-pulmonary resuscitation or allowed to die naturally?  Inevitably, these proceedings are expensive, time-consuming and distressing for all concerned.

Before giving judgment in the High Court in a dementia case last week, Mr Justice Francis expressed strong support for living wills, going as far as to suggest that there should be a national campaign to promote living wills along the lines of the organ donation campaign.

There are clear advantages to making a living will. In addition to avoiding unnecessary litigation, living wills enable people to retain control over their own medical treatment after they lose capacity, giving the power to choose treatment even if after they become unable to make decisions.

An alternative to making a living will is to consider appointing a Lasting Power of Attorney (Health and Welfare) under which the attorney is empowered to make medical treatment decisions. The advantage of a LPA is that it enables the attorney to be flexible and respond to unforeseeable situations. The disadvantage – which is a serious one – is that the attorney needs to be someone you can really trust. In the real world, these can be life and death decisions made at a time when relatives are under significant financial and emotional pressure.

It will be interesting to see whether Mr Justice Francis’ comments will indeed spark a nationwide campaign. In the meantime, the cognoscenti would be well advised to consider making a carefully drafted living will in the hope of avoiding litigation altogether – or at least restricting it to matters of interpretation.

Eloise Power of Serjeants’ Inn Chambers was Counsel for the Applicant before Francis J in the High Court on 27 September 2017 (case citation awaited)

[1] Dying: Discussing and planning for end of life. Janet Shucksmith, Sarit Carlebach and Vicki Whittaker; British Social Attitudes 30, 2013

 

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