What is a living will?
A living will is a document which enables you to set out your wishes regarding medical treatment in case you become unable to make such decisions in the future. The 2005 Mental Capacity Act gave living wills a clear statutory basis for the first time – previously their legal status was unclear.
If you want help with making a living will, we can help. Our solicitors prepare living wills for clients like you throughout Wiltshire, Hampshire and Dorset from our offices in Salisbury, Fordingbridge, Andover and Amesbury.
What can a living will do for me?
Usually when someone is unwell they discuss their treatment with their doctor and a joint decision is made about their care. If, however, you were to be admitted to hospital after an accident or a stroke, or if you developed dementia, you may not be able to make decisions about your care or to communicate your wishes to those treating you. If this happens then doctors have an obligation to act in your best interests unless you have made an advance decision. Many people feel strongly that they would not wish to receive life prolonging or life sustaining treatment past the point at which they can no longer achieve a reasonable quality of life and a living will enables them to record this and make their wish binding.
Are there are different types of living will?
Yes – living wills have two forms:
An advance decision (often in the form of a formal Advance Directive) is a decision to refuse treatment and is legally binding and can only be made by someone over the age of 18 who has the capacity to make the decision.
An advance decision can only be used to refuse treatment, even if this may shorten your life, but it cannot be used to insist on a particular treatment being given. It must indicate exactly what type of treatment you wish to refuse and give as much detail as possible about the circumstances in which you envisage this refusal taking place. It does not have to be worded in precise medical terms but it needs to be clear what treatment is to be refused and in what circumstances. Uncertainty must be avoided and so we recommend that:
- The decision is made in writing
- It includes your name, date of birth and address
- You sign it in the presence of an independent witness
- You specify what kind of treatment is to be refused and in what circumstances, giving as much detail as possible
- It includes your GP’s name and contact details – we would also encourage you to discuss the document with your GP and to give them a copy of the completed decision so this can be noted on your medical records
- You include a statement to stay that you wish the decision to apply if you lack the capacity to make the decision yourself at the relevant time
- If you wish to refuse life sustaining treatment in certain circumstances, the document should record that this wish is to apply even if your life is at risk
- As developments in medical science can be rapid, we also recommend that you review the decision regularly and that you re-sign and date it at the foot to show you have done so. The timing of reviews depends on your state of health but at least annually would be wise
- Make sure that your family are aware of the existence of the advance decision and where the document is kept
There are some things which cannot be covered in an advance decision – you cannot for example ask for euthanasia, or refuse food and drink by mouth or basic nursing care.
What is an advance statement?
An advance statement is any other type of decision about how you would wish to be treated. This is not legally binding, but should be taken into account by medical staff when deciding what treatment is in your best interests.
An advance statement can include non-medical wishes such as food preferences or whether you prefer a bath or shower; it can be used to reflect religious or other strongly held beliefs so those caring for you know more about the things that are important to you. You can also say who you would like medical staff to consult if a decision needs to be made, if you are unable to make that decision yourself.
Advance statements can be incorporated into personal and welfare lasting powers of attorney or can be made as a stand alone document, in which case we recommend that it is in writing, signed and dated by you in the presence of an independent witness.
Our specialist Private Client team can help you prepare these documents and tailor them to your specific needs.