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Archive for the ‘Court of Protection’ Category

What is a Living Will?

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Simon Mee, a wills and estate planning specialist with solicitors, Charles Lucas & Marshall explains why people may want to consider a ‘living will.’

Simon Mee

Simon Mee

When a person is unwell they will usually talk with their doctors to agree a course of treatment.  However, if, for example, a person is unconscious following an accident or is unable to communicate their wishes during the later stages of an illness, doctors will need to make the decisions themselves.  They must act in the patient’s ‘best interests’ and will assess those best interests by referring to a variety of factors.

However, a person may have made an advance decision to refuse medical treatment which the medical team must follow whether or not they believe it is in the best interest of their patient.  

The term Living Will has no legal meaning, but is often used to refer to these advance decisions or sometimes, advance statements. These are not binding decisions to refuse treatment but provide an indication of the patient’s wishes which healthcare staff should take into account when assessing a person’s best interests.

How do I make an advance decision?

An advance decision to refuse treatment is binding and must be followed, provided it is valid and applicable.  An advance decision can be made invalid by withdrawing the decision, appointing one or more attorneys under a Personal Welfare Lasting Power of Attorney or by acting in a way clearly inconsistent with the decision.

An advance decision must also be applicable, that is, it must state precisely what treatment is to be refused ie a statement giving a general desire not to be treated is not sufficient.  Therefore, an advance decision is usually most appropriate where a person has been diagnosed with a particular illness and the course of that illness can be defined, or if a person has strong feelings or beliefs about a particular treatment, such as blood transfusions.

While an advance decision need not be in writing and may be verbal, a written record should be kept, either in a person’s healthcare record or by preparation of a specific document. However, an advance decision which refuses life sustaining treatment must be in writing and signed and witnessed.

Only if a healthcare professional is satisfied an advance decision exists, is valid and is applicable must they follow it and not carry out the relevant treatment.

Are there any alternatives?

Advance decisions are especially useful where a particular situation is likely to occur in the course of an illness or strong feelings are held about a particular treatment.

Following the Mental Capacity Act 2005 it is possible to appoint a person, called an attorney, to make health and welfare decisions if you are incapable of making them yourself. This could include the ability to refuse or give consent to life sustaining treatment. This Personal Welfare Lasting Power of Attorney provides an opportunity to appoint a person to make a wide range of decisions about care and treatment and can provide greater flexibility than an advance directive.

For further information contact Simon Mee on 01488 682506 or simon.mee@clmlaw.co.uk

Written by Simon Mee

August 17th, 2011 at 11:42 am

Oxford Family Living in Hardship Due To Court Delays In Paying Out Compensation

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An Oxford family says it is living on the breadline because of delays in the Court of Protection system which means compensation awarded to them following a road accident is not being paid.

Vincent Mullen from Headington is due to receive hundreds of thousands of pounds following a court settlement in May. However, his wife, Suzy, says their efforts to sort out the compensation with the Court Funds Office have left them confused and frustrated.

“We have endured seven years of hardship following my husband’s accident,” says Suzy Mullen. “When the settlement was finally reached we were understandably relieved.”

“Without the help and generosity of my own family we simply would not have been able to cope. We have all this money due us but are still having to rely on my family and borrow my niece’s car because the money is so slow at coming through.”

Communication with officers at the Court Funds Office, part of the Court of Protection, has become so protracted that Mrs Mullen has asked her solicitor, Michael Berrett of Wantage law firm, Charles Lucas & Marshall to deal with the Court on her behalf.

He says the delays the Mullens are experiencing are typical and part of a widespread problem.

“I have represented this family from the very start of the legal process and was delighted we eventually reached what was a fair and reasonable settlement,” he said.

“Not unreasonably, my client wants to buy a property more suitable for them than the one they are living in which is privately rented. We made a prompt application for the money to be released but are still waiting.

“There has to be a better way of doing things I would be interested to know if other people are experiencing the same problems and frustrations. This regime is designed to protect people’s finances but it is only fair that it facilitates access to those finances in order that people can improve the quality of their life.”

For further information please contact Michael Berrett on 01235 771234  or michael.berrett@clmlaw.co.uk

Written by Michael Overend

December 2nd, 2010 at 12:58 pm