What is a Living Will?

The term Living Will is often used to refer to an Advance Decision also known as Advanced Medical Directive.

In the right circumstances, these can sometimes be used as an alternative to a Health & Welfare Lasting Power of Attorney.

It is advisable to seek professional advice from your Estate Planning Consultant or Solicitor when deciding on the best way to prepare for the possibility of losing the mental capacity and making advanced decisions about your medical treatment in the future.

What is an Advance Decision to Refuse Treatment?

An Advance Decision to refuse medical treatment is the only type of Living Will that is legally binding.

You may wish to make an Advance Decision if you have strong feelings about a particular situation that could arise in the future.

You may have been told that you have a terminal illness or a form of dementia and want to prepare an Advance Decision indicating the type of treatment you would not want to receive in the future.

An Advance Decision can only be used for refusal of treatment and must indicate exactly what type of treatment you wish to refuse, providing as much detail as necessary about the circumstances under which this refusal would apply.

If your Advanced Decision is valid and applicable to the circumstances, the medical professionals providing your care are bound by the mental capacity act 2005 to follow it.

Who can make a Living Will / Advanced Decision?

An Advance Decision can only be made by someone over age 18 who has the mental capacity to make the decision.

This means they must be able to understand, weigh up and retain the relevant information in order to make the decision to refuse treatment and are then able to communicate that decision.

An advance decision cannot be used to

Request anything that is illegal such as euthanasia or assisted suicide
Demand care that your healthcare team consider inappropriate in your case
Refuse the offer of food and drink by mouth
Refuse the use of measures solely designed to maintain your comfort such as providing appropriate pain relief, warmth or shelter
Refuse basic nursing care that is essential to keep you comfortable such as washing, bathing and mouth care

Advance Decisions versus Lasting Powers of Attorney

Alternatively, you could consider creating a Lasting Power of Attorney, which would allow you to choose who should make decisions about your treatment if you are not able to do so yourself.

There is a section in the personal welfare LPA document where you can specify if you want your attorney(s) to have the power to make decisions about life-sustaining treatment.

If you have made an advance decision refusing treatment this will become invalid if you later create an LPA giving someone else the power to refuse medical treatment on your behalf, when you no longer have the capacity to make that decision yourself.

If you make an advance decision after creating an LPA, this will overrule the LPA. Your attorney cannot make a decision about the treatment which you have made an advance decision to refuse, as long as the advance decision was made after you signed the LPA.

Review your Advance Decision Regularly

It is important for the people providing your treatment to feel confident that you have not changed your mind since your advance decision was made. If new or improved medical treatments become available, or your personal circumstances have changed, its validity may be questioned if you signed it many years ago.

You should review your wishes on a regular basis to be sure it continues to reflect your views.

How can I Cancel an Advance Decision?

You can cancel an advance decision at any time while you still have the mental capacity to do so. To avoid the risk that the relevant people do not know you have cancelled your decision, it is advisable to put the cancellation in writing if possible and to inform everyone who was aware of the decision’s existence.

You should also destroy the original document, or mark on it that it has been withdrawn.