Planning ahead for death or incapacity

Planning ahead for death or incapacity

Thinking about the care and medical treatment that you would like to receive at the end of your life (or if you lose capacity) is no easy task. It is even more difficult when you are fit, healthy and busy. But that is exactly when you should plan ahead.

None of us likes to think about what might happen if we lose the ability to manage our own affairs due to physical or mental incapacity. But we should do so as the impact on our family, friends and business can be devastating if the right arrangements are not in place.

Nor do most of us want to think about end of life care. But if you do have strong views about how you would or would not want to be treated, planning can be put in place now to ensure those views are followed.

According to a recent publication by the Faculty of Intensive Care Medicine called 'Care at the End of Life: a Guide to best practice, discussion and decision making in and around critical care', only a small proportion of patients will have had prior discussions about their end of life care. For those who have not done that planning, there is significant potential for disagreements between family members, and with medical professionals, during what is an already an emotional and hugely stressful time.

But if healthcare professionals know exactly what a patient would want, they can give the right care to that patient, and misunderstandings / disputes can be avoided.

So what can you do to plan ahead so that your family and others close to you have enough information about what you would want? There are many initiatives in place, both local and national, to promote thinking ahead about end of life, but in our experience these discussions usually take place too late when people are too ill to consider the options, or even to understand them.

There are three key documents to consider putting in place ahead of time:

  1. Lasting Power of Attorney for Health and Welfare (LPA) - this enables you to delegate decision making for some or all aspects of your personal welfare and medical treatment to your chosen attorneys. Your attorneys can only act if you are no longer able to make the relevant decisions. For medical treatment, doctors treating you would still provide advice and options to your attorneys, but it would be your chosen attorneys who would make the final decisions. You can decide how much, or little, decision making power to give to your attorneys. For example you can give them authority to make all decisions, including decisions about consenting to or refusing 'life sustaining' treatment. Or you could limit their authority so that such decisions would be made by the doctors treating you.
  2. Advance decision - this is a legally binding document recording medical treatment that you wish to refuse. An Advance Decision only comes into play if you are no longer capable of participating in and communicating to others decisions about your such treatment. The effect of this document is that it would be illegal for medical staff to administer medical treatment that you have refused. Advance Decisions can distinguish between absolute refusals of treatment and those that you refuse only if certain triggering conditions are satisfied. So, for example you can define medical conditions that you would find intolerable and you could say in your Advance Decision that if one of those conditions occurs you refuse medical treatment if it will needlessly prolong your life or postpone the actual moment of your death. An example of absolute refusal of treatment that we see regularly is refusal of cardiopulmonary resuscitation (CPR) . CPR usually results in major physical trauma and is often not advisable for those who are frail or have a terminal illness. Clearly, Advance Decisions are very personal and nuanced documents, and we will always suggest that when in doubt about your wishes, you should talk to healthcare professionals. 
  3. Advance statement – this enables you to record your preferences and wishes about how you would like to be cared for and your attitudes towards medical treatment. You can also record issues that matter to you, such as the foods you like or dislike, allergies, intolerances, religious and spiritual beliefs, how your pets should be cared for and so on. It is important to be aware that an Advance Statement is not a legally binding document in the same way as an Advance Decision, but your attorneys and medical staff must take account of your documented wishes when making decisions about what is in your best interests. 

Provided specialist advice is sought and the documents are drafted appropriately, all three documents can work in harmony with each other, ensuring that your preferences for end of life care and treatment are met, even in circumstances where you are unable to make those decisions.

For more information about planning for end of life care, and the management of your affairs should you or your loved ones lose capacity, please see our Vulnerable Client Services document.