Personal Law

Following a recent discussion with a client who is in the very sad position of watching a close friend (and his family) deal with physical incapacity at a young age due to an accident, the subject of advance directives (sometimes known as a living will), and what they can offer, has arisen.

There are many ways in which a person may become incapacitated and there is a difference between physical and mental incapacity. An elderly person may be suffering from the nursing home negligence in Albuquerque may no longer have any concept as to what is happening to them. Another person may have been diagnosed with an advanced form of physical illness which will ultimately result in the end of their life. A third may have been involved in an accident resulting in physically or mental incapacity, in this case the person may need a car accident attorney.

Many people may not have thought about what they would like to happen should they find themselves in one of the situations noted above. However, for others, it is a serious concern. It may be that the idea of being unable to care for oneself is extremely worrying or, alternatively, a person may not want to prolong their life if they are suffering due to a serious illness or accident.

An advance directive is a statement of your wishes as to what treatment should or, more specifically, should not be given in the event that you are unable to communication your wishes to medical professionals. When making judgements about an adult’s care, a medical professional must take into account the present and past wishes of the adult. If a patient is unable to communicate, doctors generally follow information received from family members (next of kin). However, treatment which follows may not be in accordance with the adult’s wishes. Therefore, putting an advance directive in place will ensure medical attendants have as much guidance from the patient as possible.

Advance directives are not legally binding in Scotland (unlike advance decisions south of the border) but they are highly persuasive. It is hoped that, especially if a living will is in place, there will not be a disagreement between relevant parties regarding a patient’s care but, if this is the case, the existence of an advance directive will be of great assistance to a court in making a judgement.

An advance directive should specify what kind of treatment the adult does not want to receive (rather than requesting certain types of treatment) such as:

  • CPR;
  • Artificial ventilation;
  • Certain medicines (such as antibiotics to treat infections); and
  • Artificial feeding.

It is, however, possible to state that you would like to be kept comfortable even though such treatment may have the effect of shortening your life.

Why would you want an advance directive? Generally, people do not consider such a document unless they have some personal experience of the different types of incapacity mentioned above. However, they can offer the following benefits:

  • You will have had the opportunity to consider your position in advance;
  • You can retain some control in what may be a very traumatic and upsetting time;
  • It can provide some comfort to family members (and your welfare attorney) by providing them with clear guidance as to your wishes; and
  • It can give you peace of mind by ensuring (as much as is possible) that you will not be subject to unnecessary or unwanted treatment.

So, what are the next steps? If you decide you would like to have an advance directive, you should;

  • Take advice to ensure it follows your wishes (as much as it can do);
  • Have your signature on the document witnessed by an independent party so there are no concerns regarding influences from family members (we often include advance directives with our welfare powers of attorney which mean that they are signed and witnessed in the presence of a doctor or solicitor;
  • Update or review it regularly (especially if there have been changes in your personal life) so that there is no doubt that your wishes remain the same;
  • Let your family (and welfare attorney) know your requests so there are no surprises or disagreements with medical professional; and
  • Send a copy to your GP, along with any other relevant medical professional, so that, should you be unable to communicate your wishes, your doctor will know that there is a direction in place.

If you are concerned you may well change your mind in the future, please bear in mind that these can be revoked at any time (and this can be done verbally – it does not have to be done in writing). This does also mean that, if your state of mind has changed, and you vocalise that you no longer wish the advance directive to be followed, your medical attendants cannot override your current wishes and withdraw certain treatments. It is also not possible to request to have your life ended. Assisted suicide is not legal in the UK.

If you would like any further information, please do not hesitate to contact me or any other member of the personal team.

Kathryn Johnston

Senior Solicitor at Brodies LLP
Kathryn is a Senior Solicitor in our Personal & Family team.She has a particular interest in contentious matters, adults with incapacity and succession planning for international high net worth individuals.
Kathryn Johnston

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