People have a great capacity for deluding themselves. We think because we are healthy there is no need yet to make a will or an enduring power of attorney despite the tens of thousands of people every year who lose the capacity to determine what happens their assets through accident or a catastrophic health event such as a stroke or heart attack.The same is true for long-fingering the drawing-up of an advance healthcare directive, often referred to as a living will.This is a document that can outline what medical treatment you do or do not want to have administered to you if you are unable to communicate at that time. It also allows you appoint someone you trust to make decisions for you as your “designated healthcare representative”.Some people are happy to leave their care in the hands of medical professionals, and there is nothing wrong with that. Others, however, have strong views on what should and, more importantly, should not be done to keep them alive.Until relatively recently, all you could do was draw up a letter of wishes, indicating your preferences and making them known to your GP, a family member or medical staff treating you. But it was not legally enforceable.But since April 2023, under the Assisted Decision-Making (Capacity) Act 2015, you can draw up an advance healthcare directive that has legal power.What does an advance healthcare directive do?It does three things:sets down circumstances in which you refuse treatment that are legally binding. For instance, you could decide you do not want specific life-sustaining treatments such as ventilation, feeding or hydration by tube or drip, cardiopulmonary resuscitation (CPR) or certain surgeries, such as, say amputation.it can include requests for certain treatments, including experimental ones or ones that might be available in future – such as certain gene therapies maybe. However, these are simply requests to indicate preferences to medical professionals, not binding, legally watertight requirements. You cannot insist proactively on particular treatments.allows you appoint a designated healthcare representative who can advocate with medical teams for your care to follow your preferences.Who can make one?Anyone over the age of 18 can make an advance healthcare directive as long as they have the capacity to do so.This is one of the tricky areas – capacity – because, unlike with an enduring power of attorney, you do not require a doctor and a solicitor to state you have the capacity to understand what you are doing. The Decision Support Service, which is responsible for the rules around these documents, states you do not need a “formal capacity assessment” to make one.However, if medical staff believe you did not have capacity, they might consider the healthcare directive invalid and ignore what it says. That’s all the more reason to act when there is no doubt as to your capacity, not at the point of crisis.I already have an enduring power of attorney. Surely that covers all this?Unfortunately, no. An enduring power of attorney can grant your “attorney” – the person you trust to look after your affairs if you lose capacity – very wide power but it does not cover decisions about your healthcare. No medical professional will take instruction under an enduring power of attorney. Only an advance healthcare directive can cover healthcare and treatment decisions. How specific does it have to be?This is the crunch for many people. It does have to be pretty specific. It makes sense. Doctors and nurses can be held legally liable for the care they do or do not provide so if there is any confusion about whether you have ruled out a certain procedure, they will act under generally accepted medical principles.When is an advance healthcare directive activated?An advance healthcare directive is only activated in circumstances where you do not have the capacity to make decisions for yourself. The default remains that a patient always has the right to accept or refuse a particular course of treatment.You occasionally see patient decisions challenged in court but these are always on the grounds that the patient does not have the capacity at the time for the decision they are making.And capacity is not a one-way street. You can lose capacity to decide for yourself in the immediate aftermath of physical health trauma but recover it later on. The same is true of mental health. At each point, medical staff need to be comfortable that you do not have capacity to make your own call on decisions before consulting an advance healthcare directive or a designated healthcare representative.Can I have more than one of these?This is an interesting element of the process. The answer is you can, but they must not be contradictory – not surprising as the whole point is to provide clear guidance of your wishes to medical staff.It is possible, for instance, to have one advance healthcare directive covering physical health and another covering mental health, such as a form of dementia.You can even appoint different people as your designated healthcare representative under each one, although there is nothing to stop the same person acting under both living wills as long as you and they are happy for them to do so.Can I change my mind?You can of course, as long as you still have the mental or physical capacity to do so and follow the prescribed procedure – ie in writing and signed and dated by you, your designated healthcare representative, if you have one, and two witnesses, only one of whom can be a close relative.Do I have to appoint a designated healthcare representative?No, there is no obligation to appoint a designated healthcare representative, though it is a good idea.Medical staff will still consult and adhere to your wishes as expressed in the document whether you have appointed one or not. However, it can be helpful, especially in the event of any confusion, for them to have someone to consult who is aware of your intentions as, clearly, medical staff will often only come across you at a moment of crisis.You can also change your designated healthcare representatives as circumstances change, such as if they are moving abroad, fall ill themselves or even die, or where your own family has matured and you would be happier using one of them. As with all changes, you need to follow the procedure above.What does the who thing cost?Nothing, zilch, nada. Unusually in this world, especially for a legally enforceable document, there is no charge for drawing up an advance healthcare directive, changing one or cancelling one.Where will this document be stored and who can access it?As of now, there is no central register of advance healthcare directives in the same way as there is for enduring powers of attorney. That means it is up to you to keep the document safe and to ensure it is available to those who will be caring for you.As a minimum, you should ensure your designated healthcare representatives – assuming you have one – has both printed and digital copies. The same goes for your GP and any other regular healthcare providers – such as your consultant if you are undertaking ongoing medical treatment.You might also give copies to family members, even if they are not your designated healthcare representative, as they might well be the people bringing you to hospital in case of unexpected crisis.Whatever you do, don’t store it online only behind a password where no one can reasonably access it. This is a very personal and private document but you do need certain people to be able to access it.[ Making a will, administering an estate, and will disputes: the costs and challengesOpens in new window ]And if you make changes, make sure everyone with a copy receives an updated version of the document.How do I go about doing one?Ahh, now we are down to the nuts and bolts of the thing. The Decision Support Service does provide a form as well as information on what is required but you are not obliged to use that form.However, there are certain requirements.– your name, date of birth and contact details (address, email and phone number);– the name, date of birth and contact details of any designated health representative you decide to appoint;– clear instructions about any treatment you wish to refuse and the specific circumstances in which that refusal applies;-additionally, if you wish to refuse life-sustaining treatment, you need to specify that you wish to refuse a particular treatment – say ventilation or chemotherapy – even if your life is at risk and the refusal could lead to your death. – the form needs to be signed and dated by you, by any designated health representative and by two witnesses, at least one of whom cannot be a close relative. Critically, all these people have to sign at the same time in the same place. You do not send the completed directive to the Decision Support Service.[ How can I make sure my beneficiaries don’t wait years for their inheritance?Opens in new window ]Can it be reviewed?It can and it should be. Circumstances change, as does the range of treatments that medicine can provide. It make sense to review any advance healthcare directive to ensure it is still relevant to your circumstances and reflects your current views. This is especially the case if you are diagnosed with a serious condition, such as cancer. Any changes need to follow the process outlined earlier.What can I or my designated healthcare representative do if medical staff are not following my advance healthcare directive?This is a legal document so it is extremely unlikely that medical staff will simply ignore it if they are aware it exists.The main area of conflict that can arise is where the directive is not clear about a specific course of treatment that the medical staff consider appropriate in the medical circumstances.However, if your representative is not happy with the answers they are getting, they should seek details of how to secure a review of the medical decision or make a complaint, and follow them.If they run into a brick wall, they can ask the Circuit Court – or in the event of life-sustaining treatment, the High Court – to make a decision. Anything else?These are legally-binding documents so it is not an area where you want misunderstanding or inadvertent errors because of a lack of clarity about, say, what is and is not a life-sustaining treatment. It is really advisable that you consult your GP or other doctor before concluding the process.You can contact us at OnTheMoney@irishtimes.com with personal finance questions you would like to see us address. If you missed last week’s newsletter on Pet Insurance costs, you can read it here.