News | Legal News

06 October 2017

Judge says ‘living wills should be compulsory’

A judge at the High Court says all individuals should leave a "living will" to assert their wishes over their future care, while overseeing a case hearing involving a man with dementia.

Mr Justice Francis says individuals should be encouraged to make advance statements about their wishes in the event they lack the mental capacity to make decisions, and says a campaign to educate people about living wills would be a good move.

The judge made the statement at a Court of Protection hearing, by which hospital bosses had been requesting a feeding tube insertion, for an 80-year-old man in a semi-conscious state.

The family of the pensioner - who cannot be named - have been in "great conflict" with clinicians at The Royal Wolverhampton NHS Trust, and the judge says nurses have been in tears because of "intimidation".

Judge Francis said: "It should be compulsory that we all have to make living wills because these cases would be resolved much more easily.

"If there was some sort of campaign to educate people about these sort of things I think people would actually do something about it."

The judge has ruled to allow the hospital to insert the tube, because the man does not have the mental capacity to make decisions regarding his care.

"If a patient had, while having capacity, made a living will the court would probably not have to get involved so often," added Mr Francis.

Lucy Wood, senior associate in the B P Collins private client team comments; "'The subject of living wills, and their validity, is a controversial one. To be legally binding the documents have to drafted in a very specific manner and proper advice should be sought from your solicitor and GP to ensure you understand exactly what it is you are agreeing to. 

"However, I agree with Mr Justice Francis that people should be encouraged to set out their wishes in advance.   An alternative to the living will, and perhaps a more suitable option, would be to take out a health and welfare power of attorney and give your chosen attorney's the authority to give or refuse life sustaining treatment on your behalf.  Within the document you can provide guidance to your attorney's as to your wishes and the doctors will have a legal obligation to consult with your attorney's before any decisions are made. 

"In addition, the health and welfare lasting power of attorney can cover a wider scope of decisions about your welfare, for example if you needed care how would that care be provided and where, it is therefore not limited to decisions about life sustaining treatment. 

"Our solicitors at B P Collins LLP can provide advice on living wills and health welfare lasting powers of attorney to help you decide which option is best for you."

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