Advance directives– a new and useful planning tool

With the recent changes in the Health Care (Consent) and Care Facility (Admission) Act (the “Act”), a new planning tool is now available to our clients to deal with the challenges presented by the deterioration and decline in one’s personal well-being. Many clients had expressed frustration at the inadequacy of our legislation surrounding “end of life” situations.

Prior to the changes to the Act, many of our clients had found comfort in having a “living will” signed which embraced in very general terms the philosophical perspectives of our client in dealing with end of life issues in circumstances where the client may, in future, lack the legal capacity to make their own independent decisions and to provide these instructions. Our clients found these documents to be of comfort in providing a moral compass to those caregivers and next of kin in this very sensitive area. The living will was of no legal effect, but morally persuasive, and evidence of the fact that an individual, at a time when he or she was competent to formulate perspectives on such matters, had determined that it was useful for both the author of the document, and those who might be asked to address those situations, to provide guidance and justification for those difficult decisions.

The Advance Directive permits an individual to specify the level of medical intervention, including the continuation or the withdrawal of life support mechanisms, or specific types of medical intervention in the context of end of life decision making. The more specific the description of the procedures to be refused or permitted, the more effective the advance directive becomes to the medical professionals attending to the needs of the patient. Prior consultation with the health care provider is recommended, to ensure the adequacy and accuracy of the procedures in the Advance Directives. Subject to certain exceptions under the Act, the health care provider is permitted to follow those directions, without the need to obtain further consents.

Existing living wills may be treated as advance directives, so long as they comply with the provisions of the new legislation. These are very technical in nature and any failure in regard to these matters will render the existing living will invalid. Therefore, it is strongly recommended that advice be sought to determine if an existing living will is a valid document or whether a new advance directive should be executed to replace the living will.

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