What is a Living Will?
You probably already know that a Will ensures your wishes will be respected after your death – but what about before? What would happen if you lost your capacity to make important medical decisions, perhaps due to a condition like dementia, or because you were unconscious?
- You would be unable to refuse certain medical treatments. If you did not want to undergo specific medical procedures (perhaps for religious reasons) then you would be unable to object.
- Your carers and relatives may be unaware of your care preferences. If you are unable to voice certain preferences you have for your care – for instance, certain religious beliefs or food requirements – then your medical and social carers may be unable to respect them.
- You would be unable to refuse treatments which would prolong your life, even if you did not want to. Medical professionals are under obligation to do anything which may prolong your life. In the event that you were unable to object to such treatment, your doctors would be obliged to carry out the treatment regardless.
- You may be unable to specify your wishes regarding medically induced comas or life support. Should you ever be in an unresponsive state, doctors may be unable to stop your life support unless you had formally specified otherwise.
Making a Living Will (sometimes called an advance medical directive or and advance medical decision) could ensure that all your wishes were respected should you lose capacity.
What is a Living Will?
There are two types of Living Will; an advance medical decision, and an advance statement.
An advance medical decision is a legal document which specifies which treatments you do and do not want. It can also be used to specify what you would like to happen in certain situations, e.g a medically induced coma. It can not be used to request certain treatments before you need them.
An advance statement is a list of your preferences for your care. It can be used to specify certain preferences you have for your care – so any religious or dietary preferences, for instance. Whilst it is not legally binding in the same way as an advance decision, most healthcare professionals will take them into account.
There is some overlap between a Living Will and a health and welfare Lasting Power of Attorney, and these can be used together. If you make an advance decision after you make an LPA, then the advance decision will take priority. If you make an LPA after an advance decision, then your LPA may be able to override it, depending on whether the LPA specifies the same treatment in question. You solicitor will be able to advise on how your Living Will and LPA will interact.
What is my Capacity?
Your capacity is your ability to make informed, intelligent decisions, the nature and consequences of which you understand fully. As defined by the Mental Health Capacity Act 2005, ‘lacking capacity’ means that you have mental health issues which make it difficult for you to make a certain decision, or a type of decision, at a particular time.
Your capacity can be assessed by any medical professional. Your solicitor will also make an assessment of your capacity before making any legal decisions if they think it is pertinent.
How do I make a Living Will?
Obviously the first step is to think about your medical wishes in depth. You should let your relatives know that you plan on making a Living Will, so they can refer to it should it ever be needed.
You will then need to have a thorough conversation with your solicitor, who will draw up a Living Will for you. If you are refusing treatment, then you must include a written statement that the advance decision is to apply to the specific treatment ‘even if life is at risk as a result’. Once you are certain you are happy with it, you will need to sign it in front of a witness. Your Living Will is then in place.