A Living Will, also known as an advance decision or advance directive, is a document by which you can refuse medical treatment in the future. It can be used if you become unable to communicate or unable to make decisions for yourself or if you become terminally ill.
You must be over the age of 18 to make a Living Will and also have the mental capacity to understand the nature of the document.
What goes in a Living Will?
A Living Will is used to refuse certain medical treatments in particular situations, to include life sustaining medical treatment. It must clearly set out the treatment that is being declined and state the situation in which this is to happen.
The statement should be unambiguous and contain as much information as possible so that those reading it understand what your intentions are. The document should also state that it is only to be used when you no longer have the mental capacity to make a decision.
Is a Living Will legally binding?
The Mental Capacity Act 2005 requires medical staff In England and Wales to follow the directions set out in an applicable and valid Living Will. There will be consequences for them if they fail to do this. It is important that the existence of a Living Will is brought to their attention, so you should advise your GP or other medical practitioner that you have signed the document. You can also ask for their input before drawing up the Living Will and also request that they sign a certificate confirming that you had mental capacity at the time you executed the document. It is also advisable to discuss the existence of your Living Will with your family so that they are aware in advance of what your wishes are.
What a Living Will cannot do
You cannot request medical treatment in a Living Will, only decline it.
In addition, you cannot ask for any procedure that is unlawful or use it to refuse basic treatment or food and water.
You cannot appoint someone to make decisions on your behalf in the Living Will and you cannot leave your possessions to someone; a normal Will should be used for this purpose.
If your Living Will is not clear, or you suffer from a different condition to those specified in the Living Will, your medical team can decide what is in your best interests. If the document is ambiguous, it may not be enforceable.
A health and welfare Lasting Power of Attorney
You can also appoint someone to make decisions about your health and welfare, should you become unable to do this yourself, by executing a Lasting Power of Attorney (LPA). There is also the option to sign an LPA giving someone authority to deal with your financial affairs.
A health and welfare LPA may override a previously made Living Will unless it is drafted to avoid this. A Living Will made after a health and welfare LPA may similarly override the LPA. For this reason, it is important to seek legal advice before signing either document, to ensure that your decisions are not only properly documented, but that they will take effect in the way that you wish.