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  • Many people are concerned that they should not be forced to linger on in old age or in states of advanced physical or mental decrepitude, and fear losing control over medical treatment they would wish to receive or to avoid receiving in the last stages of their lives
  • The elderly may exercise some control over their medical treatment by means of enduring guardianships and advance care directives
  • These legal mechanisms may join wills and enduring powers of attorney as routine subjects of discussion between solicitors and clients wishing to plan for future life contingencies

The changing landscape

A generation or two ago, solicitors rarely would have been concerned with the future medical treatment of their ageing clients.

Things have changed, largely in response to the immense progress in medical science, technology and practice since the middle of last century. This has dramatically altered the medical landscape, with significant consequences for the elderly.

Many common infections, diseases and conditions which used to bring a timely end to many lives, no longer do so, having become medically preventable, curable or treatable. Vital organs and physiological functions which have failed can now often be replicated or supported by mechanical or other artificial means, enabling doctors to prolong life or postpone death, sometimes for years. These benefits for the general community can be bad news for the ageing. Many of the chronic degenerative diseases, both physical and mental, which now commonly afflict the frail aged have no cure or effective treatment, and victims are often obliged to endure longer lives dominated by multiple impairments, continuous suffering, demeaning dependence and progressive degradation, and which are devoid of significant quality.

The gravity and growing incidence of these problems was acknowledged several years ago in a judgment of the European Court of Human Rights, concerning end-of-life issues in the United Kingdom, in which it was said:

‘In an era of growing medical sophistication combined with longer life expectancies, many people are concerned that they should not be forced to linger on in old age or in states of advanced physical or mental decrepitude which conflict with strongly held ideas of self and personal identity’ (Pretty v The United Kingdom [2002]).

Sentiments such as these have influenced the development of the law over the past quarter century in common law countries, particularly the US, the UK, Canada, Australia and New Zealand.

Most elderly people fear loss of control of the incidents of the dying process, including, in particular, control over the nature of the medical treatment they would wish to receive or avoid receiving, as the case may be.

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