Jun 2012 | Living Will /Advanced Care Directive - legislation in process in Oireachtas

The Advanced Healthcare Decisions Bill 2012 has passed the second stage in the Dail and, as this private members bill has Government support, it is expected that it will be enacted in due course. 

This will clarify the existing position where there is no formal recognition of a person's wishes regarding the level of treatment they may wish to have made available to them should they become terminally ill or incapacitated and unable to communicate.

Prior to this, and as currently stands until the legislation is enacted, the law relies on a comment by a judge in the Supreme Court where, in the tragic case of a lady on life support for over 20 years, the judge said he would have taken into account what her view would have been had she been in a position to express such wishes. This sparked off at the time an interest in "Advanced Care Directives", also knows as "Living Wills", where a person could set out in a letter form to his family what his wishes would be in instances such as if he were left in a permanent incapacitated state.

This legislation now provides that, for such a Living Will to be valid, there should be a witness to the letter of wishes and that a registered medical practitioner should attest that the person at the time had the capacity to make the advanced health care decision. This is akin to the attestation required of a doctor when an Enduring Power of Attorney is created. In addition the legislation allows for the record in writing to be contained in the medical notes of the person, presumably where the person signs a form of consent kept with those notes, though it is not entirely clear if this is to be the case.

The legislation is likely to be amended, for instance to refer to 'Enduring' rather than 'Lasting' powers of attorney and further clarification is hoped in relation to the matter of the medical notes instead of an express written wish.

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Aileen Keogan | Solicitor & Tax Consultant | 21 The Avenue | Louisa Valley | Leixlip | Co. Kildare | Ireland

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