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EVERYDAY LAW: A look at the ‘living will’

Cecil McCarthy

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I RECEIVED the following email a few days ago:“I am an avid reader of your column in the Nation newspaper and would appreciate your advice on a living will.“I have approached at least three attorneys regarding this and have been told that it is not done in Barbados.“My reason for this request is that although I have made it clear to my family what steps I require should I find myself on life support and so on, and also regarding my cremation, I would feel more comfortable if my wishes were placed in a document.“Looking forward to hearing from you.”There is no universally accepted definition of the term “living will”. It often refers to a written statement setting out a person’s wishes in respect of medical treatment in the future in circumstances where he/she is unable to communicate those wishes at that time.Living-will legislation has been enacted in most states in the United States. It also exists in other countries. Very recently, the Mental Capacity Act 2005 was enacted in England and this Act, among other things, now govern advance decisions (living wills).Prior to the enactment of the Mental Capacity Act, in England, “living wills” were upheld by the case law in certain circumstances.In the case of Barbados, I am not aware that it is a practice that exists here. In my opinion the enforceability of any provisions relating to advance decisions will be a matter for the courts.  However, if a person feels that he/she needs to make such a will, I would recommend that his/her desire be expressed in a document separate and apart from the usual document used to dispose of their property on death.As the matter of information, however, it is useful to consider the provisions of the Mental Capacity Act which applies in England and Wales.Under the Act an advance decision to refuse treatment is the only form of living will that is binding. Section 24(1) of the Act defines “advanced decision”. It provides as follows:1. “Advance decision” means a decision made by a person (“P”), after he has reached 18 and when he has capacity to do so, that if: (a) at a later time and in such circumstances as he may specify, a specified treatment is proposed to be carried out or continued by a person providing health care for him, and (b) at that time he lacks capacity to consent to the carrying out or continuation of the treatment, the specified treatment is not to be carried out or continued.Section 25 of the Act concerns the validity and applicability of advance decisions.Section 25(3) to (6) of the Act provide:25(3) An advance decision is not applicable to the treatment in question if at the material time P has capacity to give or refuse consent to it.(4) An advance decision is not applicable to the treatment in question if:(a) that treatment is not the treatment specified in the advance decision, (b) any circumstances specified in the advance decision are absent, or (c) there are reasonable grounds for believing that circumstances exist which P did not anticipate at the time of the advance decision and which would have affected his decision had he anticipated them.(5) An advance decision is not applicable to life-sustaining treatment unless:(a) the decision is verified by a statement by P to the effect that it is to apply to that treatment even if life is a t risk, and (b) the decision and statement comply with subsection (6).(6) A decision or statement complies with this subsection only if: (a) it is in writing,(b) it is signed by P or by another person in P’s presence and by P’s direction,(c) the signature is made or acknowledged by P in the presence of a witness, and (d) the witness signs it, or acknowledges his signature, in P’s presence.Of related interest, are the provisions of the Act which deal with Lasting Powers of Attorneys.  Prior to the Act there was legislation dealing with enduring powers of attorney which permitted a person to assume control of the financial affairs of the donor of the power in the event that he/she ceased to have mental capacity.The Mental Health Act uses the terminology of “Lasting Power of Attorney” (LPA) and creates two types of  LPAs, a LPA for property and affairs and a LPA for personal welfare. The LPA for personal welfare permits a person to choose another to make decisions about his care or treatment if he is unable to do so himself.From my own experience, there is a significant need for provisions along the same lines in Barbados especially as it relates to the financial affairs of persons who no longer have capacity. Many significant breaches of the law occur in this area because some people assume that a Power of Attorney survives the mental incapacity of the donor or simply ignore the fact that the donor now lacks capacity.
• Cecil McCarthy is a Queen’s Counsel. Send your letters to: Everyday Law, The Nation, Fontabelle, St Michael. Send your email to [email protected]