Advance Declaration | LR Estate Planning advanced Decloration

An advance declaration (sometimes known as a ‘living will’) is a document that allows you to leave a recorded statement to your attorneys, health care professionals or carers. It outlines a statement of your decisions to encourage or refuse specific types of treatment at some time in the future. This usually works in conjunction with the donor’s Lasting Power of Attorney (LPA).

An LPA passes instruction from the donor to their chosen attorneys once they lose physical or mental capacity concerning their medical and financial matters, whereas an advance declaration gives instruction on the forms of treatment they wish to refuse. This could be due to the individual’s personal or religious beliefs or can include small but important requests such as wishing to sleep with a light on as they don’t like the dark, or if they wish to to spoken to if they fell into a coma.

The most important role of the advance declaration is that it is used as evidence for the attorneys, such as if the donor wishes to refuse life-sustaining treatment after a period of time.

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When should I present my advance declaration to my medical professional?

We would recommend that you declare it to your medical professionals before you go into treatment, and inform your attorneys that you have drafted the document to help guide them in their decision when acting in your interest.

Who should I show my advance declaration to?

You should show your advance declaration to your attorneys, your medical professionals and your care professionals. These are the people who need to be aware that you have an advance declaration as they will be the people that will be following these instructions.

Why is an advance declaration important?

You may wish to decline life-sustaining treatment. If it is your wish not to receive this treatment then it is best to keep a written record of your wishes, this is to help people get a better understanding of your wishes when you no longer have capacity to express yourself .

What is the role of the Mental Capacity Act 2005

The Mental Capacity Act (MCA) 2005 applies to everyone involved in the care, treatment and support of people aged 16 and over living in England and Wales who are unable to make all or some decisions for themselves. The MCA is designed to protect and restore power to those vulnerable people who lack capacity.

Are there things that you cannot include?

You cannot choose to refuse basic care essential to your general wellbeing such as nursing care, pain relief, keeping you warm, refusing food or drink by mouth. Equally, you cannot ask for anything that is currently against the law such as euthanasia or help to take your own life. No one can insist on treatment that healthcare professionals consider clinically unnecessary, futile or inappropriate, or refuse treatment for a mental disorder if you are to be detained under the Mental Health Act 1983.

Is the advance decision legally binding?

An advance decision is legally binding as long as it:

  • complies with the Mental Capacity Act 2005. 
  • is valid
  • applies to the situation

If your advance decision is binding, it takes precedence over decisions made in your best interest by other people.

An advance decision may only be considered valid if:

  • you’re aged 18 or over and had the capacity to make, understand and communicate your decision when you made it
  • you specify clearly which treatments you wish to refuse
  • you explain the circumstances in which you wish to refuse them
  • it’s signed by you (and by a witness if you want to refuse life-sustaining treatment)
  • you have made the advance decision of your own accord, without any harassment by anyone else
  • you haven’t said or done anything that would contradict the advance decision since – you made it (for example, saying that you’ve changed your mind)

Talk to your adviser about making an advance declaration and the impacts of this document. It is important that you talk openly about your wishes.

How do I arrange my advance declaration?

Contact LR Connections and ask to talk to an Estate Planning adviser. They will arrange a meeting with you at a convenient time for you and to explain the process and answer any questions regarding your estate planning needs.

When might my advance declaration be challenged?

Your advance declaration could be challenged if you state something that is contradictory to your wishes in your statement. This can sometimes make the document invalid and anything that you have stated in the document will be dismissed.

Will an advance declaration help my attorneys if they are in disagreement about my wishes?

Yes, if you have completed an advance declaration correctly and it applies to the situation that they disagree on.

Can an advance declaration be used in a court of law?

If your attorneys are in disagreement and find they cannot agree on the best course of action for your care, they may find themselves settling the dispute in Court. Your advance declaration can be used as a written testament of your wishes and can be a vital piece of evidence in drawing a verdict concerning your treatment.

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LR Connections provides expert independent financial advice, accountancy and estate planning services