So it is
important for any professional involved with helping families and friends overshadowed by a possible death to understand the legal situation in relation to Living Wills. At present, a patient’s advance refusal of treatment is binding in the UK under
common law. This assumes, of course, that the patient is mentally competent to make such a decision. If, however, there are doubts about what the patent intends, then the
law presumes they would want to continue receiving what medical staff would regard as appropriate treatment.
However, this state of affairs is not yet covered by Act of Parliament. Furthermore, no person, not even next of kin, has
the right to accept or decline treatment on behalf of another adult.
Legislation is planned to change this. From 2007, under the Mental Incapacity Bill, people will be allowed to appoint a relative or friend to take decisions
about their health, and to instruct medical staff not to give particular treatment. Where Living Wills meet the necessary legal requirements, they will have the same status
as decisions taken by the patients themselves. But even then,
the situation will not be entirely clear cut. For example, a Living Will will not be valid where a patient’s behaviour since making it is clearly at odds with its terms -- in
other words, in cases where medical staff believe the patient has had a change of mind.
In fact, a clear and crucial distinction has to be drawn between ‘ordinary’ wills – those that govern the
disposal of our assets after death – and Living Wills which define the limits on the medical treatment we would wish to receive. Once they’ve made an ‘ordinary’ will, most people dismiss them from their minds and only
occasionally revise their intentions. With the onward march of medical science, it is essential that Living Wills are regarded differently. Survival rates change, and the
quality of life improves even among sufferers from the most severe medical conditions.
People who write Living Wills need to take regular medical and legal advice, in order to keep them under
review. You can place restrictions
upon what your Attorney can or cannot do on your behalf.
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