Legal. Advance Directives. About this factsheet. Factsheet Leg 8 October of 12

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1 Legal Advance Directives About this factsheet Factsheet Leg 8 October of 12

2 This factsheet provides information on how you can clearly set out your wishes for your health care, particularly if you have, or develop, a condition which is likely to affect your ability to communicate your wishes in the future. Inside this factsheet 1 Advance directives What is an advance directive? How to make an advance directive What to do with your advance directive Changing your mind 4 2 What is Mental Capacity? 4 3 Advance Statements 5 4 Do not attempt cardiopulmonary resuscitation (DNACPR) Forms 6 5 Power of Attorney 7 6 Useful organisations 8 7 Support our work 10 Factsheet Leg 8 October of 12

3 1 Advance directives 1.1 What is an advance directive? An advance directive is a document which allows you to set out decisions about your future care. There may be circumstances in which you would prefer to refuse certain lifesaving medical treatment, perhaps for cultural, religious or personal reasons. You may, for instance, want to refuse a treatment that would prolong severe discomfort or lead to a significant drop in your quality of life. If you have the capacity to explain what you want, the people treating you should normally respect this. In Scotland everyone over the age of 16 is treated as having the legal capacity to make their own decisions unless this is lost through illness or injury. If there are situations when you would refuse lifesaving medical care it is important to make this clear whilst you have the capacity to do so. An advance directive document can allow you to do this. 1.2 How to make an advance directive Advance directives can be made verbally by discussing your wishes with your doctor, friends and family but to avoid any confusion it is better to put your advance directive in writing. It is useful to have a conversation with those involved in your health treatment to get an idea of what you might want to include in your advance directive given the medical condition you have. An advance directive is not legally binding in Scotland but it should be taken into account by your doctor when making decisions about your treatment. To prevent any potential legal challenges later on, it is important to be able to show that you had mental capacity when you created the advance directive. It may be, for instance, that a family member will disagree with your decision about medical treatment and want to challenge your decision. Many people use a solicitor to create their advance directive as they can make sure it is clear and is witnessed; the solicitor can also confirm with you that you understand what is in the document and that you have not been pressured or influenced by another person. Your healthcare team should only take your advance directive into account in the circumstances which you include. It will not affect your treatment under any other circumstances. Factsheet Leg 8 October of 12

4 1.3 What to do with your advance directive Once you have made your advance directive it is important that everyone involved in your care is aware of your decision. You should give a copy to your GP, Power of Attorney and any specialist medical professional working on your treatment as well as keeping a copy yourself. You may also want to discuss it with your family and friends to ensure they know what your wishes are and to prevent any disputes should it ever need to be used. 1.4 Changing your mind If you decide you are no longer happy with what you have put in your advance directive you can review and change it. This might be relevant if your condition changes or if you begin to feel differently about your treatment options. It is important to review your advance directive regularly to ensure you are happy with it and it still reflects your views. You can also cancel your advance directive if you want; if you do change or cancel your advance directive it is important to ensure you inform people such as your doctor, Power of Attorney, medical specialists as well as friends and family. 2 What is Mental Capacity? In Scotland everyone over 16 is presumed to have the legal capacity to make their own decisions unless this is lost through illness or injury. Some people may have diminishing capacity due to a progressive illness like dementia or may suddenly lose capacity, either temporarily or permanently, for example to an accident or a stroke. Only a medical assessment can judge whether someone has lost capacity. When someone loses capacity they are protected under the Adults with Incapacity (Scotland) Act An advance directive will only be referred to if you have lost capacity. If you have capacity the people treating you should consult you to find out what treatment you want. For more information see our Guide to Mental Capacity in Scotland. Factsheet Leg 8 October of 12

5 3 Advance Statements Advance statements cover those living with mental illnesses including dementia, learning disabilities and personality disorders. The purpose of advance statements is set out in the Mental Health (Care and Treatment) (Scotland) Act They differ from advance directives as they are not for decisions around end of life treatment. They allow you to set out what treatment you are and are not comfortable with related to your mental illness so those treating you know what you want if decisions need to be made during times when you do not have capacity. You should make your Advance Statement in consultation with your health and care professionals as well as your friends and family. An advance statement could allow you to say which treatments you would prefer or those you would not want. There may be certain medications which have unwanted side effects that you do not want to receive. An advance statement cannot force a doctor to give you certain treatments. It will be taken into account alongside all other aspects of your care and treatment. If a doctor does decide to go against your advance decision they must give reasons in writing to yourself, your Power of Attorney (if they have welfare powers) and the Mental Welfare Commission. Just like an advance directive it is important to inform everyone involved in your care of your advance statement. You should also regularly review it to ensure you are happy with what is included. If you are unhappy with it you can change it or cancel it. If you choose to do this you should inform everyone involved in your care and welfare. For more information on advance statements, contact the Mental Welfare Commission, Tel: Website: Factsheet Leg 8 October of 12

6 4 Do not attempt cardiopulmonary resuscitation (DNACPR) Forms Cardiopulmonary Resuscitation (CPR) is a way of trying to restart the heart and breathing if they stop. It can include: Repeatedly pushing down firmly on your chest. Using a mask or tube to help you breathe. Using electric shocks to try to restart your heart. You can discuss with your healthcare team whether you would benefit from CPR if it were required. This discussion should include looking at your wishes, your health, the likelihood of success and whether it would have a serious impact on the quality of your life. If you do not want CPR or if your healthcare team decide that it would not work they can decide in advance not to try it. They will put this on a form called a Do Not Attempt Cardiopulmonary Resuscitation (DNACPR) form. This will be kept with your health records and you should have a copy in your home where it can be easily found. DNACPR s are different from advance directives as they only concern CPR and not any other potentially lifesaving treatments. If you want to review your decision about CPR you should discuss this with your doctor. If your healthcare team believes that CPR will not work you cannot insist on receiving it. If you are unhappy with a decision made about CPR you can ask for a second opinion or make a complaint. You can get assistance with making complaints to the NHS from the Patient Advice and Support Service You can contact them through your local Citizens Advice Bureaux or find out more about them here: The Scottish Government has a factsheet Decisions about CPR Information for patients, their relatives and carers available at If you do not have internet access call the Age Scotland helpline and we will print off a copy for you. Factsheet Leg 8 October of 12

7 5 Power of Attorney Granting Power of Attorney involves creating a legal document which gives someone else the authority to make specific decisions about your life if you need help or lose the capacity to make those decisions yourself. The person you grant these powers to is known as the Attorney. Power of Attorney can cover decisions related to your welfare, your money or both. The Attorney must make decisions on your behalf based on what you have set out in your Power of Attorney document. For those with illnesses like dementia a Power of Attorney can be valuable in making sure their wishes and instructions are still respected if they can no longer express them. Many people choose to make their advance directive part of their Power of Attorney document. If this is done it should be as part of a clear separate section. Including an advance directive in a Power of Attorney document does not make the advance directive any more legally binding and you should take all the same steps you would if you were making a separate advance directive. An advantage of creating a Power of Attorney is that there is someone responsible for reminding those treating you of your wishes. It is important that you grant the power to someone you trust to go along with your guidance. A Power of Attorney must be made while you still have the capacity to do so. Everyone should consider the benefits of putting a Power of Attorney in place and not delay in doing this as capacity can be lost suddenly through accident or illness. For more information see our guide Power of Attorney in Scotland. Factsheet Leg 8 October of 12

8 6 Useful organisations Age Scotland helpline The Age Scotland helpline provides information, friendship and advice to older people, their relatives and carers. If you need an interpreter call and simply state the language you need e.g. Polish or Urdu. Stay on the line for a few minutes and the Age Scotland helpline will do the rest. You can call us on for a copy of our publications list or download copies from our website at NHS Inform NHS inform is a health information service designed to give you access to the health information you need.. Tel: Website: Macmillan Cancer Support Macmillian are a charity that supports those with cancer and their carers. They have information on Advance Directives as well as other support and information. Tel: Website: MND Scotland MND Scotland is the only Scottish charity providing care and support to people with Motor Neurone Disease (MND), their families, friends and carers. They provide a wide range of services, information about MND and funding for research. Tel: Website: Factsheet Leg 8 October of 12

9 Alzheimer Scotland Alzheimer Scotland provides a wide range of specialist services for people with dementia and their carers. They offer support services, community activities, information and advice. Tel: Website: Law Society of Scotland A professional body for solicitors in Scotland. They can provide lists of local solicitors in your area. Tel: Website: Solicitors for Older People Scotland A group of Scottish Law firms dedicated to providing legal services to older people. Tel: Website: Office of the Public Guardian Scotland The Office of the Public Guardian are the official government body for registering a Power of Attorney. Tel: Website: Mental Welfare Commission The mental welfare commission promotes the welfare of individuals with mental illness, learning disability and related conditions by empowering individuals and their carers and influencing and challenging service providers and policy makers. Tel: or freephone for service users and carers Website: Factsheet Leg 8 October of 12

10 Patient Advice and Support Service (PASS) The Patient Advice and Support Service (PASS) is part of the Scottish Citizens Advice Bureau Service. It is independent and provides free confidential information, advice and support to anyone who uses the NHS in Scotland. Helpline: Website: Support our work Every year, thousands of older people across Scotland benefit from the vital information and advice Age Scotland provides. If you would like to support this work and help improve the lives of older people in Scotland you can donate by: Giving us a call on and ask for the fundraising team. Visiting our website at Across the UK For information and advice in the rest of the UK: In England contact Age UK Advice on , In Wales contact Age Cymru on , In Northern Ireland contact Age NI on , Factsheet Leg 8 October of 12

11 Disclaimer While we aim to ensure that the information in this document is factually correct at the time of production, Age Scotland cannot be held liable for any errors or omissions. Please ensure that you have an up to date factsheet and that it clearly applies to your situation. No factsheet can ever be a complete guide to the law, which also changes from time to time. Legal advice should always be taken if you are in doubt. Please note that the inclusion of named agencies, companies, products, services or publications in this factsheet does not constitute a recommendation or endorsement by Age Scotland. This factsheet may be reproduced in whole or in part in unaltered form with due acknowledgement to Age Scotland. Reproduction in any other form is not permitted without written permission from Age Scotland. Factsheet Leg 8 October of 12

12 Factsheet Leg 8 October of 12

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