Living will / Advanced Decision

Living Wills and Health and Welfare LPAs

| Published on December 8, 2021

By Chris Keenan, Partner and Head of Court of Protection

A really interesting case has come out of the Court of Protection concerning Advance Decisions (often known as ‘Living Wills’) which shows us how important it is to continually review and consider legal documents.

The case of Re: PW 2021 concerns an 80 year old Jehovah’s Witness (‘PW’) who, in 2001, had executed an Advance Decision stating that she did not wish to receive blood transfusions in the event of requiring life sustaining treatment.

The Advance Decision was a pro forma document and not a specifically drafted document for PW.

In 2020 PW suffered a gastric tumour and it was felt by the medical team that life could be prolonged with treatment, and crucially the use of clean blood products. PW did not have capacity to make a decision for herself and so the hospital submitted the case to the Court for a judgement.

It was found that, through her actions in the past, PW had acted in a way that was inconsistent with her Advance Decision. This was because;

  • PW had executed a Health and Welfare Lasting Power of Attorney (LPA) in 2020 but not appointed her Attorneys to make decisions about life sustaining treatment. However she had not made any comment about her AD which suggested she did not think it was relevant or that it was not in the forefront of her mind
  • PW had sought a removal of a ‘Do Not Resuscitate’ notice at the hospital
  • There was evidence to suggest that after the death of her husband, PW had ‘lapsed’ in her faith

The Judge in the case felt that this was sufficient to show that the Advance Decision could be disregarded and treatment could continue.

The case shows that it is crucial to review and document any decision made to refuse life sustaining treatment and consider how an LPA for Health and Welfare may be an alternative option.

We suggest reviewing documents every 3-5 years, or simply make an appointment and come and discuss your requirements with one of our team and we will help steer through the complex water of mental capacity issues and Advance Decisions.

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