Make your own decision
Buzzwords in some circles at the moment are advance care directives also known as living wills. The Law Reform Commission recently made recommendations in relation to advance care directives and it is hoped that these will be dealt with in the Mental Capacity Bill.
In brief, an advance care directive is a document prepared by a person of full capacity, intended to be activated in the event of future incapacity. It leaves instructions as to how they are to be treated in certain defined situations. As there is no right to dictate treatment decisions, instructions tend to be expressed in terms of what treatment may not be given. Any such advance directive is overridden by a later competent contemporaneous decision. The idea of an advance care directive is generally associated with decisions concerning end-of-life care and particularly withdrawal of lifee-sustaining treatment, but applies equally to other situations, for example, blood transfusions and organ donation.
At the moment, the options available when a person has lost mental capacity are to make them a Ward of Court or to register an Enduring Power of Attorney (EPA). Both mechanisms have their uses, but are limited in that neither procedure allows either the court in Wardship proceedings, or an appointed attorney (EPA), to make healthcare decisions.
Making someone a Ward of Court is an unwieldy, expensive procedure in the High Court. If a family member is made a Ward of Court, the family must go to the Office of the Wards of Court in order to make almost any decision about an individual.
An Enduring Power of Attorney is preferable ideally. An EPA is a document, which is signed by someone when of full capacity. It allows the person (the Donor) to appoint chosen individuals as attorneys. These attorneys will ultimately have authority to make decisions in relation to the donor’s property, financial, business affairs and can also make personal care decisions, in the event that the person looses their decision-making capacity. An EPA must be registered in the Office of the Wards of Court.
The Law Reform Commission has prepared a draft Bill on advance care directives in the hope that it will be easily incorporated into the existing Mental Capacity Bill. As stated, the current legislative framework of the EPA or Wardship does not allow for another person to make healthcare decisions for an individual. The Mental Capacity Bill envisages extending powers so that such decisions can be made by way of a living will but will specifically exclude decisions involving refusal to consent to artificial life-extending treatment or consent to organ donation or to non-therapeutic sterilisation.
In part the purpose of the Mental Capacity Bill is to create a new substitute decision-making process for protecting vulnerable adults, involving a new Court for Care and Protection and the appointment of a Personal Guardian.
People are increasingly enquiring about making advance care directives when they come into solicitor’s offices to prepare wills - often at the same time as execution of an EPA - due to a wider awareness about end of life care and planning for the unknown.
Louise O’Rourke
lorourke@hayes-solicitors.ie