What is a Living Will?
A Living Will (or Advance Directive) is not a Will in the usual sense, but is instead a document expressing your wishes on how you are to be treated in a situation where you are unable to communicate with doctors yourself. As the idea of undergoing invasive, life-sustaining treatment where there is no prospect of recovery does not appeal to everyone, the Living Will can give individuals more control over the decisions made at such a time. It can also make your wishes for life-prolonging artificial nutrition, hydration and ventilation known, and a statement can be made on your feelings about participation in scientific research. Living Wills cannot be used to request a treatment however, nor can they be used to make a request to end your life, their function is to give the medical professionals treating you some guidance as to your wishes regarding life-sustaining medical treatment. It can also help to alleviate pressure and guilt on family members who may otherwise have had to make these decisions in the absence of a Living Will.
Advance Directives England & Wales
In England and Wales, a person has the right to refuse treatment or care, even if it has the effect of shortening their life. Those giving treatment must respect these decisions, and treatment given without consent may constitute an assault in England and Wales. You may appoint someone to consent or refuse treatment on your behalf in either by way of a Welfare Lasting Power of Attorney or by making Advance Directive (Living Will). The difference between the two is that an Advance Directive can include decisions you have made yourself on how you would like to be treated, and the Welfare Power of Attorney’s only function is to appoint someone else to make decisions about your welfare for you. Guidelines for medical professionals on what to do if a patient has made an Advance Directive can be found in the Code of Practice to the Mental Capacity Act 2005.
What can I Include in my Living Will?
You can make your Living Will as generic or specific as you wish, and it can state whether you would want to die naturally, without artificial support, or conversely if you want to stay alive at all costs. The Living Will is only effective where you are unable to communicate with your doctors and can be revoked at any time, so there is no need to worry if you have a change of heart down the line. You can, if you wish, choose that the Living Will is invoked only when you are suffering from an incurable and serious illness or condition and are unable to communicate your wishes.
What makes a valid Living Will?
In order to make a Living Will valid, certain requirements must be met, as laid out in the Mental Capacity Act 2005. The person making the Living Will must be over 18 and be mentally capable at the time of writing. They must also specify which treatment they want to refuse, and the circumstances when this should apply and must include an express statement that the decision is to apply even if it is life threatening. The Living Will must also be signed and witnessed. A decision will be deemed invalid where the person has cancelled the Living Will or has subsequently made a Lasting Power of Attorney giving someone else authority to consent to or refuse treatment specified in the Living Will. Conversely, making a Living Will after you have made a Lasting Power of Attorney will overrule the Lasting Power of Attorney, with the effect of your attorney being unable to make decisions about any treatment you have refused in your Living Will. The Living Will does not apply where the person can still communicate their decisions or the proposed treatment or circumstances are not specified in the Living Will. The document may be deemed invalid if the person acts inconsistently with the terms of the Living Will, or where there are reasonable grounds for believing that circumstances have arisen which were not anticipated when making the Living Will, which may have altered the person’s wishes.
Living Wills need to be kept under review as the length of time since a Living Will was made or reviewed can be a factor for consideration as to the validity of the document. We would highly recommend reviewing your Living Will at least every four years, as circumstances may have changed, such as advances in medical treatment which may affect decisions you have made.