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Should I put an Advance Directive in place?

The Law Society of Scotland has just published a new report looking at what they perceive to be the deficiencies in Scots Law around advance choices and medical decision-making in intensive care situations.

Many readers may have heard of terms such as ‘Living Wills’, ‘Advance Medical Directives’, ‘DNRs’ or ‘Advance Statements’ in passing, but never been certain what they refer to or whether they would be helpful. That uncertainty is central to this latest academic report produced by the Law Society, which attempts to identify shortcomings and make recommendations for legislative solutions.

In its simplest form, an Advance Directive is a set of instructions given, or wishes expressed by you, that concerns issues that may arise in the event of your incapacity. Given its subject matter, the document can be significantly wide-ranging covering matters including health, welfare or other personal issues such as economic and financial matters. For example, the document could detail which situations you would prefer life support machines to be used, who should be appointed as your legal guardian (if necessary), your personal grooming habits or preferences for food and drink.

Unfortunately, there is no prescribed format for these documents in Scots Law. Moreover, given that Scots Law does not specifically acknowledge these types of documents, their legal status is ambiguous. However, they are still vitally important and relied upon by the individuals involved in making decisions regarding your treatment, care and affairs such as your appointed Attorneys and clinicians. We would recommend seeking legal advice to put an Advance Directive in place so that your wishes are placed at the centre of all future decision-making, regardless of your ability to voice them.

Adrian Ward, convener of the Law Society of Scotland's Mental Health and Disability Sub-Committee, said: “Members of the public have been encouraged to make “advance directives”, but there is no statutory provision for them in Scotland beyond those limited to mental health matters. Nor is the law clear about how to ensure maximum effectiveness of decisions that they might wish to make in advance of incapacity.

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