Practitioners need to convince clients of the value of expert advice in advance decisions, says Andrew Cusworth

During tough economic times and with the increasing access to and use of the internet, many people are going down the DIY route to meet their various legal needs.

Many practitioners will be familiar with people trying to make their own wills, codicils and lasting powers of attorney. It is an area of growing concern for legal practitioners who will often only see clients after they have tried to deal with matters themselves, sometimes with devastating results.

Statutory footing

Advance decisions are a good example of a particularly difficult area, but one where some people try to manage the arrangements themselves. The advance decision, put on a statutory footing by the Mental Capacity Act 2005, has recently been under the spotlight, with the courts highlighting the problems that can ensue when the right advice is not sought. Similarly, any practitioner involved in this area must be mindful of the potential pitfalls.

At the end of April this year the courts were faced with a case where a gentleman suffering with motor neurone disease had completed a statement via a pro forma communicating his wishes to withdraw from life-sustaining treatment (The X Primary Care Trust v XB and YB, [2012] EWHC 1390 (Fam)). His only means of communicating this was by moving his eyes to the right and the form was completed with the help of his wife and others.

After he lost mental capacity one of his carers raised doubts over the validity of the statement as she had not seen his eyes move when it had been made. The form had also been misinterpreted and a date of 2 May 2012 had been entered in the ‘review’ section next to ‘valid until‘.

The court had to first decide whether the form was indeed valid and reflected the true wishes of the gentleman and second, whether the date entered meant the statement would be invalid after this date.

In this case, the court accepted his wife’s evidence stating that the document represented her husband’s wishes and that the date had been entered with the intention of the form being reviewed again by this date.

Specialist advice

The case is a good example of why practitioners need to impress on clients the importance of seeking specialist advice when completing these critical documents as simple mistakes can lead to added, and unnecessary, problems to an already distressing situation. In addition, the practitioner must take great care in the preparation of these documents, just as with wills and asting powers of attorney, when asked to help.

The case has also highlighted that it is key that other people, be it family members or trusted friends, are involved with the preparation of these documents as, had this gentleman’s wife not been engaged in the process, his wishes may not have been carried out.

Practitioners can help to protect clients from these disputes by raising awareness of the importance of seeking specialist advice and highlighting the key conditions introduced by the Act and its code of practice in order to secure the validity of an advance decision.

Critical components:

• An advance decision that includes a direction about life sustaining treatment must be made in writing, be signed by the person and witnessed.

• The person making the decision must be aged 18 or over.

• Particular treatment cannot be requested.

• Refusal of certain treatment can be included but must be detailed, as vague descriptions can invalidate the document so it is key that the person’s GP or other medical practitioner is consulted to ensure accuracy.

• If a treatment is being refused due to personal or religious beliefs, this must be clearly stated.

Although some of these appear to be common sense, omitting one or more can have a serious impact so due diligence on the part of the legal adviser is essential.

Additionally, practitioners can assist clients in other practical ways, for example by liaising with the client’s GP to ensure that the advance decision is kept on the medical file and by reminding clients of the need to keep the advance decision under review.

Simple mistakes

A further recent example that came before the courts earlier this year demonstrated how a simple mistake could produce detrimental results (An NHS Trust v D, [2012] EWHC 885 (COP)). The gentleman in question had fallen into a vegetative state following a cardiac arrest in surgery. He had forward planned and had prepared an articulate statement refusing life-sustaining treatment in the event that he would be left with no quality of life.

Falling foul of section 25(6) of the Mental Capacity Act, which requires the statements to be witnessed, it was held to be invalid.

The challenge for practitioners in this highly sensitive area of the law is persuading clients that forward planning is to be encouraged - at any age - but getting expert advice can make all the difference between having their wishes followed or not.

Where vitally important legal documents are required, they should be prepared by experts. In this way, numerous traps for the unwary can be avoided.

Andrew Cusworth is a partner and head of trusts and estates planning at Linder Myers