Advance decisions – what you need to know

An advance decision (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.

The guidance below sets out important points you need to consider about advance decisions and how they differ from a lasting power of attorney (LPA), health and welfare.

Advance decisions are covered by the terms of the Mental Capacity Act and can only be relied upon if the person concerned lacks the required capacity to make a decision about their own treatment at the time the decision is needed.

A valid advance decision can only be made by a person over 18 years of age and who is mentally capable of understanding the decision at the time the advance decision is drawn up.

An advance decision does not have to be in writing but it is much clearer if it is. If an oral statement is given it should be made to your GP or healthcare professional to avoid being overlooked.

If the advance decision also deals with life sustaining treatment it must satisfy the criteria set down in the Mental Capacity Act:

  • Be in writing
  • Be signed and witnessed
  • State that the refusal of treatment applies ‘even if life is at risk’

An advance decision can be revoked or amended at any time whilst you have the mental capacity to do so.

What is the effect of an advance decision in practice?

Health and social care professionals are trained to act in their patients’ best interests at all times. They must provide the treatment and care that they feel best meets their patients’ needs at the time and they can be found to have failed in their professional duties if they do not.

A valid advance decision that deals with the circumstances in question allows the healthcare professional to make a decision that is not in the patient’s best interests and thereby be protected from legal liability.

How does an advance decision compare with a lasting power of attorney for health and welfare?

Provided they have the necessary capacity to do so, any person over the age of 18 can prepare a lasting power of attorney (LPA) for health and welfare.  The person making the LPA (the donor) can appoint attorneys to act for them in relation to their health and welfare in the event that they lack the capacity to make a decision for themselves. An attorney has no authority to act until the lasting power of attorney is registered with the Office of the Public Guardian and can only act whilst the donor has capacity to make his own decision.

Under an LPA  for health and welfare, an attorney can be given authority to make life sustaining treatment decisions on the donor’s behalf.

Unlike an advance decision, an LPA for health and welfare does not have to stipulate in what circumstances an attorney can make such a decision on the donor’s behalf.

An attorney can therefore make a decision based on their knowledge of the patient’s wishes, the treatment required and the chances of the treatment working as well as the views stated by the relevant healthcare professionals at the time.

Most importantly, the attorney is making the decision on the donor’s behalf at the time the decision needs to be made, whilst armed with all relevant information then available.

What is the difference between an advance decision and LPA for health and welfare?

The crucial difference between an advance decision and an LPA for health and welfare is that under an advance decision a person decides at the time of making the advance decision whether or not they might want refuse treatment many years in the future and in what circumstances.

Under an LPA for health and welfare, the donor appoints attorney(s) to make a decision for them, and the attorney will be able to make the decision at the time the decision needs to be made and they will be armed with all relevant information then available.

It is possible to have both an LPA for health and welfare and an advance decision. The more recent document will take priority when there is a decision to be taken about treatment and care.

Using a combination of both systems, it is possible to restrict an attorney’s powers by means of a later advance decision which, in turn could be updated from time to time as medical science and the donor’s priorities progress. It is therefore essential that an attorney is given a copy of the advance decision.

Choose Furley Page for advice about advance decisions

Contact a member of elderly and vulnerable client team for specialist advice about advance decisions.  They have many years of experience in helping clients on this area of law.

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How can we help you?