06th December 2017
Living Will – Tragic Error
BBC Breakfast today discussed a tragic situation which highlighted the pros and cons and differences between Living Wills and Lasting Powers of Attorney .
A Living Will (also known as an “advance direction”) is a document which sets out the medical treatment which you would wish to have (or often more importantly you would wish not to have) if you reach a stage where you are unable to make or communicate those decisions for yourself. They are designed to enable someone to decide in advance what should happen if for example, they have a serious stroke, unexpected accident or degenerative medical condition. Decisions can include whether you should be kept on a ventilator, fed through tubes or have operations. Particular wishes not to have a treatment can override what the medical profession might otherwise do to preserve life (in the same way as a mentally competent adult can refuse to accept treatment).
Mrs Brenda Grant had seen her own mother lose independence through dementia. Mrs Grant feared degradation and indignity more than death itself and this motivated her to make a Living Will, specifying that she would not wish to be artificially fed through tubes. Mrs Grant did not wish to be kept alive if she had no quality of life.
Sadly, Mrs Grant had a catastrophic stroke some time after making the Living Will. She couldn’t talk or even swallow and to keep her alive the doctors initiated feeding her through a tube. Mrs Grant frequently tried to pull out the tubes and intravenous drip.
So, why was Mrs Grant’s Living Will not implemented? Whilst Mrs Grant thought that she had provided for her future, unfortunately, the hospital misplaced the Living Will. Equally unfortunate, no one had a certified copy (a copy certified by a solicitor to be a true copy of the original – certified copies in the majority of cases will be accepted in place of an original document) – it’s not clear whether the Living Will was a DIY version.
As Mrs Grant could no longer communicate her wishes and her family did not know about her Living Will, Mrs Grant was force fed for almost two years. It was only through the aid of Mrs Grant’s G.P, who informed the family of the Living Will, and his campaigning with the family, that the document was found. Mrs Grant’s tubes were then withdrawn and she died a few days later, in accordance with her wishes.
The hospital now records the existence of a Living Will on the front page of a patient's notes, to reduce the risk of it being lost within the mass of paperwork.
How to avoid the tragic error?
When making a Living Will Hewitsons recommend our clients meet with their GP at the time to discuss their feelings, so that it is also recorded in their medical notes by the GP. We also recommend providing spare certified copies to your G.P, a close friend or relative or having a copy in your home. The original document can then be safely stored.
Alternative to a Living Will
The alternative to a Living Will is a Health and Welfare Lasting Power of Attorney (LPA).
The key difference is that an LPA delegates the decision making to a chosen relative or friend (‘the attorney’). The attorney can be very flexible in their approach and it requires only that the attorney can be relied upon to know what the person making the LPA would want to happen. A Living Will, however, is often used where no one is willing to take on the great responsibility of an LPA, or the person making it has very detailed specific wishes.
However this level of detail can also have its disadvantages in that there may be situations which have not been foreseen and therefore are simply not covered by the Living Will.
A final point to note is that an LPA is also registered and copied at the Office of Public Guardian which means that once it has been registered it cannot be misplaced!
If you would like to discuss Living Wills or Lasting Powers of Attorney further please do not hesitate to contact Ciara Wanstall, a solicitor in our Private Wealth team on 01604 463101. Alternatively email her at firstname.lastname@example.org.