It is open to anyone to make what is popularly called a ‘living will’, a document more commonly known as an ‘advance directive’ or ‘advance decision’. Advance directives can include a direction that life-sustaining medical treatment should be withdrawn in certain circumstances. They are often used to communicate a wish that life-prolonging medical treatment should cease if a person has no hope of recovery from an illness.

In a recent case, an advance directive to refuse life-sustaining treatment was upheld by the Court of Protection in a decision in which the judge emphasised the need for clarity of language in such documents.

The advance directive was made in November last year by a 67-year-old man who was suffering from motor neurone disease. He communicated his wishes by way of eye movements. At that time, he was believed to have the necessary mental capacity to create a directive, but by the time of the Court of Protection hearing in early May 2012 that capacity had been lost.

One of the man’s carers raised doubts as to the recording of the decision, which had been carried out using a form downloaded from the Internet. This appeared to have an expiry date of 2 May 2012. An urgent application was made to the Court of Protection, which upheld the validity of the document, thus making it possible for doctors to remove the man’s artificial feeding tube. The judge hearing the case emphasised the importance of clarity in such documents and recommended that charities and others providing pro-forma advance directive forms should review them in the light of her comments.

If you wish to appoint another person to make decisions about your medical treatment in the event that you lose the capacity to do so yourself, this may be done by executing a Personal Welfare Lasting Power of Attorney rather than an advance directive. Such a document can give a person of your choosing power to make a range of decisions relating to your personal welfare if you become incapacitated, including where you will live and decisions regarding medical treatment.


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