Advance Medical Directive or Advance Decision

What is an Advance Medical Directive ?

An Advance Directive  or advance medical directive is a formal statement describing the medical treatment a person would not want to receive if they are not in a position to make a decision. That means that, should they ‘lack capacity’ as defined by the Mental Capacity Act 2005, the Advice Directive should be followed.

The term ‘living will’ is often used to describe an Advance Directive but they ONLY deal with medical issues, not finance or (for example) where you live. These things are dealt with respectively by Property and Financial Affairs Lasting Powers of Attorney and by Health and Welfare Lasting Power of Attorney.

In our view, the benefits of Advance Directives are very limited compared with in comparison with those of the Health and Welfare LPA, which is much to be preferred and which will “trump” an Advance Directive.

An advance directive is legally binding in England and Wales. In theory it need not be formalised on paper but one can hardly present a doctor with the hearsay of verbal statement made by a relative many years ago and expect to be taken seriously.

As long as you are considered to have mental capacity, anything you say will override an Advance Directive.

It is possible to override an Advance Medical Directive by appeal to the Court of Protection but it is more likely to be ignored because it does not cover the precise situation you find yourself in and it is clearly impossible to cover every eventuality.

Advance Directive summary.

In our view, Advance Medical Directives should only be used where you have very specific issues – for example, an absolute refusal to have blood transfusions. Any wider issues and Lasting Powers of Attorney are infinitely better – if more expensive. Please do read that section, it is really far more important than most people realise.

IM

 

 

One thought on “Advance Medical Directive or Advance Decision

  1. Eastbourne Lawyer Post author

    STOP PRESS: Court of Protection decides it now has authority over even correctly set up Medical Directives, leaving doctors potentially exposed to criminal action.

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