It’s the next of kin who makes that difficult decision, isn’t it?  Surprisingly, the answer is often that the husband, wife, partner or family members may not the ones who make that decision.

 

Prior to July 2018 it was necessary for family and doctors to apply to the Court of Protection to make a final decision on whether to withdraw life-sustaining treatment for a person with a ‘prolonged disorder of consciousness’ (for example where the patient is in a post-vegetative state).

In July 2018 the Supreme Court ruled that an application to the Court may no longer be needed in all cases where the family and medical professionals are all in agreement about the course of action to be taken.

The decision by the Supreme Court was made after the case of Mr Y, a 52 year old man, who was apparently in good health and led an active life, but who suffered a cardiac arrest and lost consciousness: Due to his resulting medical condition, it was deemed highly unlikely that he would ever regain consciousness. The doctors and family were all in agreement, but he had not made a Lasting Power of Attorney for Health & Welfare or provided any instructions on what his wishes were if he were to become unwell and unable to make decisions for himself (aka a “Living Will”), so they still had to apply to the Court for a final ruling.

There can be no guarantee that a Court application would not still be needed – none of us know what might happen to us or what our relatives might decide is best for us and whether their wishes might contradict those of the medical professionals.  A Court application is costly and can take a number of months, during which time the patient and the patient’s relatives may experience prolonged suffering. In addition, the Court’s decision may also not reflect the patient’s wishes.

Is it therefore really worth leaving decisions to others, when you could have specified your wishes in advance?

Best practice is to have a Lasting Power of Attorney (LPA) in place. The importance of an LPA should not be underestimated: had Mr Y had one in place, which granted his attorneys authority to make decisions about life sustaining treatment on his behalf, the matter would have been concluded far sooner.

A Living Will also has its benefits; however, an LPA is far more comprehensive: for example, you can also grant attorneys authority to make decisions as to your long-term care.

There is also a Property and Financial Affairs LPA, under which you can grant attorneys the authority to manage your financial affairs.

Not only are LPAs a benefit to the person making them, but they also make it easier to manage that person’s affairs without the need to apply to Court each time. It is better to prepare for this potential eventuality regardless of your age or apparent fitness.