Most, if not all of us, will be aware of the importance and use of the Health & Welfare Lasting Power of Attorney (H&W LPA) for clients at an often difficult and emotionally sensitive time. However, often overlooked, are alternative "Advance Care Planning" (ACP) options that can offer greater levels of security and clarity for individuals and families in times of need.
ACP anticipates a time when a client may have lost the ability to take part actively in decisions about their care. It is a way for a client, whilst able, to send a message to their future carers about the type of care they would like to receive during periods of serious or chronic illness, to help ensure that they receive medical treatment consistent with their values and preferences.
ACP can include making one or more of the following documents: the H&W LPA, an advance decision and/or an advance statement – this piece will focus on the strength of advance decisions in providing relief through difficult times.
Of course, if an individual is unwell and has mental capacity, they can discuss their treatment options with healthcare professionals and can refuse treatment, or the continuation of treatment, even if this may ultimately result in their death. But what if they are temporarily or permanently unable to make a decision or communicate their wishes at the time when those decisions need to be taken?
An advance decision enables a client, whilst they have capacity, to refuse specified medical treatment at a time in the future when they lack the capacity to do so. A client may wish to refuse certain treatment irrespective of the circumstances.
For example, a Jehovah’s Witness always refusing a blood transfusion, or an individual with terminal cancer refusing a particular type of chemotherapy, or, more commonly, only if they are suffering from a particular condition – for instance, a mental or physical disability making them reliant on others, or machines, for everyday care.
So long as the advance decision is valid and applicable to the circumstances, healthcare professionals must refuse the treatment, irrespective of whether they feel it is in the patient’s best interests to do so.
The term "best interests" is of crucial importance and reliance on it is one of the key differences between the familiar H&W LPA and an advance decision. An attorney under an LPA must always act in the donor’s best interests which, in the specific case of life-sustaining treatment, would involve consulting with carers, family members and any co-attorney and ensuring that medical professionals are all on board with any decision that is to be taken.
Where an advance decision is being followed, the "best interests" principle does not apply – it is overridden by the advance decision, which is a legally binding document.
A client can make both an advance decision and H&W LPA, subject to careful order of signing, ensuring they still have protection in place for those situations where the advance decision may not apply, but knowing that if it does apply, it will take precedence. Also, importantly, even if an advance decision is not valid and applicable to the circumstances, it must still be taken into account when deciding what is in an individual’s best interests.
A client may also want to prepare an advance statement, perhaps enabling them to set out preferences for treatment they would like to receive, a particular care home they may wish to go, and/or anything of importance to them and their daily routine. Whilst not legally binding like an advance decision, advance statements are a softer way of communicating preferences and must also be considered when making a best interests decision.
Yes, an advance decision has its limits – it cannot be used to specify treatment an individual must receive or ask for medication/intervention that would hasten death (equivalent to the illegal act of assisted suicide), and of course, as lawyers, we cannot provide any form of medical advice.
However, ACP certainly offers those clients with strong views about their future care a means by which to communicate their wishes and feelings without leaving families in the dark at an often already hugely difficult time.
In addition, ACP can provide a method for those with no close family members (take the widow with no children of their own and/or estranged step-children) to set out to future medical professionals and carers what their feelings are. In an ever ageing population in which dementia is only set to increase, isn’t it right to at least consider the ACP toolkit with clients?
This article was first published in eprivateclient and can be accessed here.
Rachel Tavroges-Hunter