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F E Smith
F E Smith, Advocate
Category: Law
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Experience:  I have been practising for 30 years.
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This concerns UK – English law) I just wanted some advice

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This concerns UK – English law)
I just wanted some advice regarding Advance Decisions (Living Wills) and Last/Final Wishes after ones death.
I want to put in place a legally binding document to ensure that if I was ever incapacitated and left physically/mentally incapable of consenting to any medical treatment; I would be able to refuse/decline certain or all treatment(s). And if I was ever to be in such a state as severe extensive Coma, PVS (Persistent Vegetative State), LIS (Locked-In Syndrome), Brain Stem Death etc. One with little to no/zero quality of life and an extremely poor prognosis and/or severely disabled. Where it is extremely unlikely and/or impossible I could be returned to either my original healthy state or one very near to. I would be able to request in advance cessation of all life sustaining treatment and not to be resuscitated.
Would an AD be suitable for all of this?
Could you tell me if it is possible to refuse any Psychiatric treatments in advance? Such as: forced/involuntary medicating/treatment, ECT and any sort of neurosurgery.
What would happen in emergency treatment situations (via pre-hospital - paramedics/ambulance)? Will my wishes still be honoured? I do not agree with blood/bone marrow transfusions and/or any sort of organ/tissue donation/transplantation to and from another person, animal or being.
I am not religious but hold some spiritual beliefs and have strong beliefs about what happens to my body. I want to stay in control as much as possible concerning any potential future events. As I think I have a right to do with my body as I wish.
How would my wishes be recognized in other countries? Would this depend upon each countries jurisdiction?
Can I make any provisions regarding voluntary euthanasia and assisted dying? I know this is not currently legal in the UK but would I be able to make my wishes known - My agreement with the above in the appropriate situation/circumstances? Particularly if the law were to change surrounding the topic.
Can I make wishes about what happens to my body after death legally binding? For instance, I do not agree with organ/tissue/body donation and do not wish to donate any of these. I do not want my body to be tampered with in any way. I do not want to be embalmed. And I wish to be buried and not cremated with a non-religious, reasonable service/proceedings. Would I be able to include any thing about these in my AD or have them noted on my medical record? Or will I have to create a separate document?
Also, is it possible to refuse an autopsy/post-mortem examination in advance in the event this may be required? External examination only - Declining anything invasive and intrusive in accordance with my wishes/beliefs?
What do you think would be the most appropriate course of action? Recommendations/suggestions?
Thank you for taking the time to assist me
Submitted: 4 months ago.
Category: Law
Expert:  chatham-chamber replied 4 months ago.


Have you made a Will?

Have you made a Lasting Power of Attorney?

Customer: replied 4 months ago.
No, I do not have a last will and testament. I don't see it as necessary at this moment in time. Nor do I have any significant property or assets. I am not married.I do not wish to give anyone power of attorney.For your information, I am currently in good health and just want to plan for possible future events.
Expert:  chatham-chamber replied 4 months ago.


In order for so.eone to deal with your affairs in the event that you are unable to make your own decisions, you will need to execute a lasting power of attorney. A lasting power of attorney is normally executed for property and finance.

With reference to your wishes upon your demise, these are best oneast with in a Will. I note you are in good health but you can never be too prepared. Any wishes in your will regards

ding what happens so to you after your death will be carried out by your executors.

With reference to decisions in the event you become incapacitated, these, again, would be covered by the lasting power of attorney. This is different from a general power of attorney.

I hope this answers your questions. If so, kindly rate the answer and provide feedback.

If you have any further questions, please do not hesitate to ask.

kind regards

Customer: replied 4 months ago.
I am sorry your answer isn't really satisfactory. Not all of my questions have been answered and I require a higher level of detail.I am sure if I were to be deemed mentally incapable of making medical decisions I would be able to state in advance my wishes about any treatment via Living Will, in a legally binding fashion. A Lasting Power of Attorney is not required here, if I am correct? And If I do not wish to give anyone that privilege .As I have said previously I don't wish to create a will at this moment in time. And doesn't a will reading tend to happen some time after a person has passed? In which case it would be much too late..
Customer: replied 4 months ago.
Customer: replied 4 months ago.
Can I speak to another expert please?The service I have received so far has been poor and rather disappointing...
Expert:  F E Smith replied 4 months ago.

I have read the previous experts answer and appreciate your concerns. Hopefully, I can resolve this issue for you.

Is your concern that whoever is treating you will take no notice of your Advance Directive?

With regard to emergency services, obviously, they would not know about this nor, if you were taken into AEU would they know about it unless a friend or next of kin or relative were to produce the document.

I can tell you that if for any reason a post-mortem is deemed required, you have no control over that.

With regard to everything else that you mention where you would rather die than literally be living but with no life, then yes, your Advance Directive would cover most of that.

You are at liberty to refuse any treatment and that applies also to neurosurgery heart surgery, any surgery you like. If however the lack of psychiatric treatment would lead to you being a danger either to yourself or other people, the court has the power to order that treatment to take place.

With regard to other countries, would depend what the law is in those countries.

Regarding your funeral arrangements, these would normally be in your will (cremation/interment) and/or in a Letter of Wishes attached to your will. I appreciate from your previous post that you said you did not want to write a will you felt that you had no need for one but at least if you do that, someone will be aware of what your wishes are and can take control of those wishes.

Can I clarify anything for you?

Customer: replied 4 months ago.
Hello,Thank you for answering my request.My concerns regarding the AD are that my wishes about any medical treatment are taken into account and that they must be followed, if I lack capacity. I do not want to give anyone power of attorney and still want to be in control of my own destiny, regardless of whether I am incapacitated or not. I think the AD is one way of doing this and having some control as it is legally binding. You do not have to take out both an AD and POA, if I am correct? They are completely different and separate legal documents?Can I make any provisions regarding voluntary euthanasia and assisted dying? I know this is not currently legal in the UK but would I be able to make my wishes known - My agreement with the above in the appropriate situation/circumstances? Particularly if the law were to change surrounding the topic.Could I carry a card or something similar possibly notifying Emergency Services of its existence together with notifying next of kin? Will keeping a copy in my Medical Records in addition to my SCR help? Although, I understand in fast moving situations it is not always possible to check.What if organs and tissue have to be removed during post-mortem/autopsy examination? Would the body eventually be returned to its original state and released in accordance with the deceased/next of kin wishes? What rights do you have here?So I am able to refuse/decline certain psychiatric treatment(s) in advance and my wishes will be taken into account? Although these could be overridden by a court if I were to be sectioned, for instance?Regarding a will...Again, is this not usually considered some time after a person has passed? Even so, Final Wishes are not legally binding, if I am correct? Therefore, in the extreme, they could be completely ignored regardless of being written in a will or not? I cannot see the purpose of going through the time and expense of creating one, in addition to, having to seek two witnesses. Again, my estate is of low value and I have few assets and most likely my parents (current next of kin) would inherit this - If I were to meet an untimely death. Of course, if my circumstances change significantly I would reconsider a will.I refer you to this statement:"Many people believe that their funeral wishes will be carried out if they document them in their Last Will and Testament. However, a Will is an inappropriate document in which to detail your funeral wishes, simply because it will usually be located and read long after the final arrangements have occurred. Hence, using a service such as the MyFuneral™ service will ensure that your wishes are heard, understood and followed when the time is right."From the site: site I am perhaps considering utilising as they provide secure online storage of legal documents and hard copies. I am not sure if you are able to comment concerning third party sites? I was considering an AD and having a separate document for my Last Wishes, as well as, informing relevant parties. Do you think this is adequate? How many witnesses do you need for an AD? Will one suffice?
Expert:  F E Smith replied 4 months ago.

Thank you.

The Advance Directive is legally binding in most cases and certainly with regard to DNR and refusal of treatment.

You’re absolutely correct that no one can be compelled to have a Power of Attorney although it does make sense to have one just in case something happens which is not life-threatening but leave you without the capacity to be able to manage your affairs.

If it’s a physical incapacity, you could always do a power of attorney at the time but if it is a mental incapacity, then someone else could apply for deputy ship over your affairs to look after them. So whilst it makes sense to have a power of attorney, you don’t have to have one.

Voluntary euthanasia and assisted dying is still illegal. Any provisions in that respect would currently not be enforceable. By all means make your wishes known.

Carrying a document of some description perhaps in your wallet and some kind of reference in your mobile phone under ICE as a contact (In Case of Emergency) may help as would one of these USB sticks which people carry round their neck containing information such as this.

With regard to any post-mortem, the body should be reassembled although there have been cases where organs have been illegally removed and kept for research purposes. However it is illegal.

Once the body is released, it would be dealt with in the usual way by the undertaker, cremation or interment.

Wishes in a will as to cremation or interment are legally binding but it’s unlikely that if the executors didn’t follow those wishes, anyone else would want to take legal proceedings to make them. However, it could be done.

You are able to refuse any treatment including psychiatric treatment as you have described.

The statement is made by a commercial organisation who have a vested interest in getting people to use their service. However, if someone has died, how would they know that you have signed up to this service?

You would be surprised how quickly after a death beneficiaries go searching for a will. We had one family come into our office asking for a will (they had no death certificate so couldn’t have it anyway) and when we asked when their parents had died, the answer was “15 minutes ago!”.

The secret is to make sure that everyone around you knows what your wishes are regardless of what’s in the will.

With regard to the will company you propose to use, I don’t know whether they are good bad or what. I can tell you that there are lots of instances where wills are lost because the company that is holding them has gone bust. If a solicitor closes down, there is always another firm that takes over the documents and records. Most solicitors will not charge for storing a will but may charge for retrieval.

Customer: replied 4 months ago.
That's the interesting thing about wills. They can often become a contentious issue!Would it be possible to also write a general statement in my AD concerning temporary lack of capacity and allowing next of kin to be considered in those situations, providing their decisions don't contradict mine?So I would not be allowed to make any statements concerning euthanasia in my AD? I would have to express my wishes elsewhere? I'm guessing if it were to be legalised, I would have to create a new one or update?Yes, I think I will take your advice on carrying ICE details on my person.Preferences concerning organ donation are legally binding are they not? Under the Act that deals with this, informed consent has to be given or organs/tissue cannot be taken, if I am correct? I know there has been some controversy over next of kin overruling the deceased wishes.There appears to be conflicting views/advice regarding whether Funeral/Final Wishes are legally binding. The general consensus seem to be that they are not. So you can only strongly state what you would like informally. Although, I remembering reading somewhere that this could possibly change in the future. No idea if that's true or not...I think I will go ahead with the AD, a separate document with any Funeral/Last Wishes and inform any relevant next of kin. Perhaps, storing them securely both online and in hardcopies leaving them with any relevant parties/places and keeping a copy in my medical records and adding a note to my SCR (AD).Regarding the site I refer you to:"The Keyholder® system. Here at, we have developed the Keyholder® system, which allows your designated friends or family members to locate your documents and important information. But don't worry. Security mechanisms are in place which protect you from anyone attempting to access your documents and information prematurely."" has funding set aside to support the cost of hosting member information for a number of years into the future based on today's prices. This money is used as an insurance policy to ensure that even if ceases to accept new members, that existing member information will still be maintained. At today's prices (which we anticipate to fall) even if received no additional revenue, hosting of member data is secured for another 25 years. Our intention is to increase this fund to support ongoing costs for a minimum of 100 years, which is well beyond the advance directive needs of any of our members.Nevertheless, if for whatever reason you believe that will cease to exist in the future, you can still make full use of our services by viewing and printing your documents and storing them in a safe place. When they are needed, assuming that your loved ones know where to look, they can still access your documentation. If used in this way, our pricing structure still makes the creation of these documents very cost effective for all of our members, with no dependency on the web site. But has every intention of being here to stay!"The company appears to be genuine and has been operating for some time (over 16 years) and has mostly allayed my concerns. Although I will have to do more research before perhaps I consider using them.How many witnesses do you need for an Advance Directive? Again, conflicting advice on this one... Some say one, others say two. I was considering using one. A Clinical Psychologist - The ideal professional I think to assess mental capacity at time of signing, in case this brought into question.
Customer: replied 4 months ago.
Expert:  F E Smith replied 4 months ago.

The difficulty with temporary lack of capacity is deciding whether it is temporary or permanent and to what extent would the next of kin have any powers to deal with your affairs? They cannot deal with your affairs unless they have power of attorney.

You can limit the extent of the power of attorney as to what you wish them to do.

You’re absolutely right with regard to euthanasia. You can express their wishes in the AD they will just not be of any effect until such time as the law changes.

Organ Donation wishes are, legally binding. You have to consent otherwise… You cannot be taken.

The problem with funeral wishes is the if the executors decide to go against your wishes, there is unlikely to be anyone who would want to litigate it to change those wishes. If someone has been cremated then any litigation would be rather academic. If someone was buried, it would require a further order from the court to have the body exhumed.

25 years of the legal profession, I have not yet had at the executors go against the deceased wishes. We have had numerous arguments over ownership of the grave stone and wording on it however.

Many of these will companies are genuine. However if the company ceases to exist, copy documents will need a court application to have them admitted. I’m not trying to line solicitors pockets but as they will generally store wills for free, I can’t see any reason not to do that and use a solicitor.

I would always put two witnesses on any document of this nature. However do remember they don’t need any qualifications. The person witnesses the signature, not the document.

Customer: replied 4 months ago.
NOK would normally be considered in cases where temporary incapacity exists or where my AD does not apply (health care), if I am correct? Although, I think you are referring to personal/financial affairs here? There are two types of POW aren't there - One specifically for health and another for finances? Obviously, I want as much control as possible health wise/financially but I guess a POW for property and finances could perhaps be considered with limitations. Where temporary incapacity exists but is not permanent (several months or more) and there is still a good chance of recovery.I will most likely create the documents through an online service as these tend to be much more affordable. I will print the document and make a hard copy in addition to getting it witnessed and signed, to make it legally binding. I could possibly then use your advice of storing the original with a solicitor, notifying relevant parties and making copies. Could I also store information about funeral wishes there? Will any potential healthcare team have to see the original AD in order to consider it? Or will a signed copy in my records suffice?Two witnesses is a tad impractical as they can't just be anyone and it could be time consuming and costly. Do they also have to be both present (in the same room)? Isn't the one enough legally? Especially using a Psychologist (adding extra weight, I know qualifications aren't important) or similar professional to reassure any prospective doctor I was definitely of sound mind and had capacity at the time of signing. Although, if need be, I could possibly find two if it's strictly necessary..
Expert:  F E Smith replied 4 months ago.

There are indeed 2 types of Lasting Power of Attorney. Financial and personal.

As I said earlier, the difficulty is knowing whether the mental incapacity is permanent or not. A person may be expected to make a full recovery but not actually do so.

The important thing that whatever you do, you make sure that those around you know what your wishes are and whether documentation is kept.

Funeral wishes with regard to the choice of cremation or interment are usually in the will and if you wanted other arrangements such as type of music et cetera et cetera then a letter of wishes would normally be kept with the will.

The healthcare team would normally want either the original or a certified copy. A certified copy would only cost five quid from a solicitor and you could keep that in your wallet.

I can’t see why 2 witnesses is impractical. They can just be anyone. You could literally track people off the street and get them to witness your signature. The more removed they are from your affairs, the better.

In fact, an advanced direction doesn’t actually have to be writing unless it is a decision to refuse life-sustaining treatment. However unless it is in writing, then the can always be a dispute over whether that’s genuinely what you wished. Hence, it’s better to have it in writing. There can then be an allegation that you didn’t know what you doing and hence witnesses. The more witnesses to attest to your mental state and the fact that you did sign this document, the better.

If you are having 2 witnesses, they witness your signature so they have to be together when you sign the document although you can sign the document twice in the presence of each witness if they are not there together.

Customer: replied 4 months ago.
you're right it's difficult to know the potential outcome of a situation like that. If incapacity were to become permanent I'm guessing my AD would come into action. Before this my NOK would be consulted, taken into consideration but the doctor has the final say?I didn't realise anyone could witness as I thought they had to be specific persons. I.e one of professional standing etc.If I used the one would it still be acceptable legally? As the bare minimum?
Expert:  F E Smith replied 4 months ago.

Certain documents need to be witnessed by a solicitor but they are few and far between. Affidavits, statutory declarations, and certain documents for the bank including some mortgage deeds when it is the lenders requirement. Legally, the mortgage deed can metaphorically be witnessed by the office cat! The witness only witnesses the signature, not the document. They don’t need to know what it is what is in it.

With regard to doctors taking notice of it, the GMC have produced this very short guideline:

I obviously know what all the other mnemonics in the thread mean but I’m afraid that NOK escapes me.

Customer: replied 4 months ago.
To clarify...NOK - Next of kin. I'm assuming they would be consulted in any other event that my AD doesn't cover.You didn't answer my question.. I just wanted to know if one witness would still be legally acceptable? I have read elsewhere it is but I wanted clarification.
Customer: replied 4 months ago.
The link provided doesn't seem to answer my question either.
Expert:  F E Smith replied 4 months ago.

DOH, of course. Using mnemonics can be very dangerous in a legal context. Say that they would be consulted in respect of “any other event” is probably going a little too far. They may be told about things but I think that consultation is probably going to be gilding the lily a little.

One witness is legally acceptable and I mentioned two purely to stave off any suggestion that you weren’t capable of agreeing this.

Please don’t forget to use the rating service to rate positive so that I get paid. Otherwise I give my time for nothing. We can still exchange emails if you wish

F E Smith, Advocate
Category: Law
Satisfied Customers: 8445
Experience: I have been practising for 30 years.
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Customer: replied 4 months ago.
Sorry about that, I'll try to avoid the mnemonics.I didn't mean literally in every medical event! I meant in situations where one lacks capacity (temporarily) and is severely incapacitated, and my Advance Directive has yet to be considered. I would assume doctors would consult with next of kin about medical care, concerns etc.Thank you for your understanding and patience. You have been very helpful. That is all I wanted to know.I will rate and compensate you in due course.

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