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Living Wills

Today, I was reading the May edition of 39 Essex Street Chambers’ excellent Court of Protection Newsletter and noted a recent decision of the Court of Protection which, amongst other things, provides a salutary, but sad, lesson on the importance of obtaining proper legal advice (in this instance, in relation to Living Wills).

In An NHS Trust v D, Mr D had fallen into a vegetative state, following a cardiac arrest in surgery. Prior to surgery, he had prepared a well written articulate statement refusing life sustaining treatment where there was unlikely to be any ‘quality’ of life.

Unfortunately, the statement failed to comply with section 23 of the Mental Capacity Act 2005 (MCA), which requires that any advance decision to refuse life-sustaining treatment must be witnessed. The statement therefore had no legal effect and the matter had to be referred to the court to make a decision (which, predictably, took a long time).

Following on from my colleague Richard Ashton’s blog on the dangers of DIY wills (January 19th 2012), it strikes me that in this instance what was actually written was spot on, but that it was ignorance of the additional legal requirements that caused the problem.

If you would like any further information or advice regarding living wills or our Court of Protection department please contact us on 0844 984 6002.

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