Despite what its name suggests a Living will or Advance Care Directive as it is more properly called, has nothing whatsoever to do with providing for the administration or distribution of one’s estate or assets.
The essence of an advance care directive is that it is a document prepared by a person of full capacity intended to be activated in the event of future incapacity and leaving instructions as to how they are to be treated medically or surgically in certain defined situations. A Directive allows a person to express their instructions regarding future treatment, at a time when they have capacity to do so, to include a wish that certain specified medical treatment is not to be carried out or continued in the future. In this way, the Directive benefits those who may not be capable of giving their consent to treatment at a later date due to an incapacitating accident or illness e.g. because of the effects of Alzheimer’s disease, coma or stroke). The term is generally associated with decisions concerning end of life care and particularly withdrawal of life-sustaining treatment, but applies equally to other situations e.g. blood transfusions and organ donation.
In Irish Law at present there is no provision for the making of Advance Care Directives but the Law Reform Commission suggests that the maker should be able to appoint a “healthcare proxy” who will interpret, or in specific situations, state the maker’s instructions.
A Bill has been drafted (Mental Capacity Advance Care Directives Bill 2009) which aims to provide for and regulate the making of Advance Care Directives. The proposed legislative framework clearly indicates that a person is entitled to refuse medical treatment for reasons that may appear not to be rational or based on sound medical principles and also that they can refuse medical treatment for religious reasons. It will not apply to mental healthcare as the Report concludes that this should be subject to review and separate analysis at a future date.
Despite the fact that doctors are increasingly coming across directives in practice and a number of institutions have published guidelines, it is surprising that there is no legal framework here to assist those making, drafting and interpreting them. The general view is that they will be upheld by the Courts and the fact that the maker had the foresight to document his or her wishes indicates that he or she held strong views which health professionals will strive to take into account.
In some countries it is possible to appoint someone else to make decisions on your behalf if you are not capable of making them yourself. In Ireland this power is granted by creating an Enduring Power of Attorney. An Enduring Power of Attorney however specifically does not allow for the making of health care decisions by another person.