A living will allows a person to define, in advance, which medical procedures they will and will not consent to at a time when they are no longer capable of making or communicating a decision.
A living will can refer to all medical treatment and not just immediate life threatening procedures. To make a living will a person must have sufficient mental capacity to make a competent and informed decision to refuse medical procedures in advance.
The use of living wills is becoming increasingly widespread. It should be noted that they are prepared in addition to an ordinary will.
The formal name for a living will in England and Wales is now an ‘advance decision.’ (but called an ‘advance directive’ in Scotland). This follows the introduction of The Mental Capacity Act 2005 which put living wills on a statutory footing in England and Wales.
An advance decision is therefore now legally binding in England and Wales. In Scotland and Northern Ireland advance decisions remain governed by common law rather than legislation although it is highly unlikely that a doctor located there would ignore such wishes.
As a result a person can have strong peace of mind that their wishes set out in their advance decision will not be ignored.
A living will can also be used to express an ‘advance statement.’ This is a general statement of wishes detailing how a person wants to be treated, if incapacitated, in reference to their personal values, principles or religious beliefs.
An advance statement would, for example, cover the situation where a person decides that they want to spend their final weeks at home and not in hospital.
An advance statement is not legally binding but may act as a guide to a doctor who has to make a decision on behalf of a patient who lacks mental capacity.
Discuss with your doctor
Depending on your particular situation, it may be worthwhile discussing the subject of living wills with your doctor. As a point of administration, you should ensure that a copy of the completed living will is left with your doctor.
Drafting a living will
When planning to make a living will you should bear in mind the following:
1. You must be over the age of 18.
2. You must have mental capacity.
3. You must specify what treatment is to be refused and in what circumstances.
4. You must make the decisions yourself and not because you are being told or harassed to make a living will by someone else.
5. Your living will should be in writing, signed by you and witnessed. The witness should be aged over 18, not your spouse or partner and not entitled to any portion of your estate. The witness should also not be your doctor, healthcare employee etc.
6. Your statements in the living will must be very clear.
As a living will is an important document, we recommend that it should be prepared for you by a solicitor, although this is not a legal requirement.
The information which we provide through Lasting Post is in outline for information or educational purposes only. The information is not a substitute for the professional judgment of a solicitor, accountant or other professional adviser. We cannot guarantee that information provided by Lasting Post will meet your individual needs, as this will very much depend on your individual circumstances. You should therefore use the information only as a starting point for your enquiries.