A High Court judge said living wills should be compulsory in order to set out wishes in the event of serious incapacitating illness.
Judge Justice Francis, who is based in in the family division, has said that a campaign to educate people about living wills would be a good move. He believes that they would resolve cases where a sick or elderly person no longer has the physical or mental capacity to make their own decisions.
The judge's comments to lawyers follow a Court of Protection hearing about the treatment of an elderly man who is in a minimally conscious state. Mr Justice Francis said the man's family had been in "great conflict" with hospital staff over treatment, which had led to "intimidation" and "nurses in tears".
Annabelle Vaughan, partner and head of court of protection & wills, trusts & probate at Coffin Mew, said: “The question of living wills highlights a complex area of law, where the known wishes and feelings of individuals are put at the centre of decision making. A foreseeable problem with compulsory living wills is that individuals have a right to change their mind - there are bound to be disputes as to whether the recorded wishes are still current at the point where a decision needs to be made."
Ms Vaughn stated that on a practical level, it would difficult to envisage how compulsory living wills would be enforced and who would bear the cost of introducing any mandatory system. "The current safeguards for individuals with Lasting Powers of Attorney have not eliminated financial abuse by attorneys; a far more robust system would be needed for dealing with something as fundamental as death," she added.
“What one person would find tolerable if they needed life sustaining treatment may be vastly different from another. An arbitrary system would risk generalising the point at which people wish their lives to be ended."
Ms Vaughn agreed with Mr Justice Francis that education is key and that people should be actively encouraged to have these difficult conversations with their families "before the opportunity ceases to exist".
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