The increased profile of dementia and similar conditions in the media is thankfully helping the public to make informed decisions about the possibilities of future care.
It is a fact that as people live longer conditions of this nature will continue to grow, and increasingly we see clients concerned about what would happen if they were unable to express their wishes or make decisions for themselves.
They fear doctors or social workers would override their wishes and provide treatment that they would not want – even when family members explain what those wishes would be.
However, there are steps you can take to ensure that your wishes will be respected if you are unable to communicate them at some point in the future.
One option is to draw up an Advance Decision - a formal document to refuse a particular treatment should it be deemed appropriate if, for example, you became terminally ill or incapacitated. If the document is relevant to the circumstances, and you no longer have the capacity to communicate, then, subject to some limitations, the medical staff are bound to follow it.
The document must meet the requirements of the Mental Capacity Act to be valid. Healthcare professionals must follow an advance medical decision if it applies to the particular circumstances although, they will also have to consider whether there are any new developments since you made the decision, which might have affected it, such as medical advances or changes in personal circumstances.
An Advance Decision can only be used to refuse treatment, not to ask for a specific treatment.
The document should be sent to your GP with a request that it is filed and marked on your medical record and you should review it from time to time to keep up with changes.
Alternatively, it is possible to make an Advance Statement (a general statement of wishes and views) which would have to be taken into account by the medical staff when deciding your best interests, but there is no guarantee, as this would not be legally binding.
A more reliable and flexible option is to draw up a Health & Welfare Lasting Power of Attorney (LPA). Property and Financial Affairs LPAs are more widely used and understood – but only deal with financial decisions.
A Health & Welfare LPA can be drawn up as long as you have sufficient mental capacity, so it’s important not to leave it too late. You appoint an attorney or attorneys to make decisions in respect of your health and welfare generally for when you have lost the capacity to do so yourself.
Your chosen attorney/s is able to make decisions about matters, such as where you live or what treatment you receive. You can choose whether they are able to refuse or accept life sustaining treatment on your behalf.
It is therefore vital to consider carefully who you appoint as your attorney or attorney’s, you must trust them completely to carry out your wishes. You should also check that it is a role they would be willing to take on if the need arose.
If this is a matter of concern for you and you are considering any of these options it is important that you receive proper advice from a reliable solicitor.