You may wish to have control of your future medical treatment when you have lost mental capacity and cannot make your own decisions regarding your Will.
An advance decision, if valid and applicable, is a legally binding document that can be created by a person who decides to refuse the giving or continuing of specific medical treatment if, in the future or at the time of the treatment, they have lost the relevant mental capacity to be able to consent to it.
The rules governing advance decisions are in Sections 24 – 26 of the Mental Capacity Act 2005 (MCA 2005). Prior to the Act, advance decisions were commonly known as advance directives or living wills.
An advance decision must be made by a person who has reached the age of 18 and has full mental capacity when making the advance decision to be binding.
If there is any doubt whether the decision maker has the relevant mental capacity, a full written assessment by a qualified medical practitioner should be obtained.
A person is presumed to have mental capacity unless otherwise established, and the details of how a person lacks mental capacity are set out in Section 2 MCA 2005. The test for mental capacity is set out in Section 3 MCA 2005, which comprises the following elements:
It is important that the advance decision is specific to the medical treatment that will be refused in the future; otherwise, it may not be valid.
The advance decision will have effect as if the person had made it at the time with the relevant capacity.
A healthcare professional will no longer need to consider if any specified treatment is in the best interests of the decision maker, if an advance decision has been made, and will not be liable for holding back or withdrawing the treatment.
Suppose an advance decision is created after a Health and Welfare Lasting Power of Attorney. In that case, an advance decision will take priority over any decisions made by your attorneys (so far as they conflict with the advanced decision) concerning your healthcare.
To have effect, a decision-maker must not:
If made before 1st October 2007 (when the MCA 2005 came into force), an advance decision will be determined by the common law rules before the Act came into force, which reflects the current legal position of the MCA 2005.
An advance decision cannot be used to:
An advance decision can be made either orally or in writing. The Mental Capacity Act 2005 Code of Practice's recommendations provide guidance regarding what should be included in an advance decision.
If the decision is to life-sustaining treatment, additional requirements must be followed; for example, it must be in writing, signed by a decision-maker and witness and include a verification statement.
To ensure that an advance decision meets your current circumstances, it is important to review it regularly to ensure that it remains valid and applicable. If you would like our assistance to ensure that all the statutory requirements for a valid advance decision are met, please contact our Wills, Trusts, and Probate team on:
