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EVERYDAY LAW: Care and living wills

Cecil McCarthy

EVERYDAY LAW: Care and living wills

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In today’s article, I continue to discuss issues relating to the elderly in response to a letter received last week. That letter reads in part:

“I read with interest your September 3 article Elderly And The Power Of Attorney, which discussed the local situation where powers of attorney for legal and financial transactions are not durable when the donor loses mental capacity. I have an interest in the care of the elderly, and I hope that perhaps you can discuss advanced health care directives in the Barbados setting.

An advanced health care directive or advanced directive is a written instructional health care directive and/or appointment of an agent, or a written refusal to appoint an agent or execute a directive.

Internationally, advanced directives were first used in the United States. Canada chose not to legislate advanced directives but developed advanced care planning programmes, whereas Britain relied on common law until the passage of the Mental Capacity Act 2005. In Australia, in the late 1900s, almost all states and territories passed a guardianship legislation allowing a person to appoint a substitute decision-maker. Some states legislated advanced directives that specifically record health care treatment preferences while others rely on common law.

I believe that advanced directives can greatly improve health care for the elderly in Barbados. I look forward to your possible comments on advanced health care directives, living wills, guardianship legislation and appointment of surrogate decision makers.”

An advanced health care directive usually 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, as it is sometimes called, has been enacted in most states in the US. It also exists in other countries. The Mental Capacity Act 2005 was enacted in England and this act governs advanced decisions (living wills).

As a starting point, it is useful to consider the provisions of the act which applies in England and Wales. Under it, an advanced 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 concerns the validity and applicability of advance decisions. Section 25(3) to (6) 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 at 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 Capacity Act uses the terminology of “lasting power of attorney” (LPA) and creates two types of LPAs – one for property and financial affairs and another for health and 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.

• Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael. Send your email to [email protected]