About this series of articles
This article is one in a series about writing a will. We hope it is useful whether you are considering making your own, or whether you are just looking for information.
What is a living will?
A living will is also known as an advance healthcare directive. Both names hint at the purpose of the document.
The purpose is to assist those providing medical or other care to giving you the treatment you want even at a time when you are no longer able to communicate directly with them, in specific circumstances at some stage or time before you die.
A living will may or may not be legally binding, depending largely upon the actual requests you make. However, it is likely that your relatives and health care professionals will take notice of a firm, clear and lawful instruction.
It has no direct connection to a last will and testament, except that often they are created at the same time.
Who may wish to make an advance healthcare directive?
The law is set out in the Mental Capacity Act 2005. You may wish to record such a directive if for example, you have (or think you might have the early stages of):
- a learning disability
- dementia
- a mental health problem
- a brain injury
- had a stroke
Why make a living will?
The most common medical reason for making a living will is so that you can refuse life-prolonging medical treatment if you became seriously ill in the future and were incapable of making your own health care decisions.
The document contains provision for details of your GP but it is not obligatory to discuss your living will in advance with him or her, although it may be helpful to do so.
You can make a living will at any time in your life. You do not need to have, or suspect you have, a medical condition or be close to not being able to not being able to communicate your wishes.
You cannot use an advance directive to:
- ask for specific medical treatment
- request help to die (whether by assisted suicide or euthanasia)
- instruct someone else to decide what treatment you should have
Formalities
A living will must be signed whilst you are mentally competent.
There are no other formalities necessary. It is up to you to set out carefully what you want or do not want. It is equally important to specify the circumstances which apply, particularly if you are giving alternatives. You should also make clear that you understand the likely outcome or effect of your wishes.
The directive should be in writing, dated and signed and witnessed by at least one independent witness who will have nothing to gain from your death. It may also be useful if that person, or some other, can state that they know you understood the effect of your proposals. Avoid discussing deeply with family members who may benefit from your death because a court might take the view that they had unreasonably influenced your decision.
Refusal of specific treatment
You can set out exactly what medical treatment you wish to refuse - you may wish to refuse antibiotics, tube feeding or you may not want to be resuscitated.
Requesting treatment
Alternatively you may want to have life sustaining treatment even if you have very little chance of recovery.
Unlike a refusal of treatment, this type of request is not binding on your doctor. However by asking for it in the document, your doctor will know you want the chance to recover from your illness even if it is not very likely you will do so.
You will be able to tell your doctor what you want to happen to you even if you cannot communicate. You are in control.
Your document might include points about:
- treatment you would be happy to have, and in what circumstances
- treatment you would want, no matter how ill you are
- treatment you would prefer not to have, and in what circumstances
- the name of someone you would like to be consulted about your treatment at the time a decision needs to be made
You might like to bear in mind that new drugs or treatments may be introduced in the future. So you could, for example, state that you would prefer not to receive certain current treatments but would allow new treatments.
Include your name, address, date and signature in the advance statement.
It’s also advisable to say you understand what you’re doing and are capable of making such decisions. It would be helpful also to get the statement signed by a witness who can say that you had mental capacity at the time.
Who needs to know about a living will?
It’s important that your living will is entered into your medical notes so that in an emergency it is found and acted upon.
Consider sending a copy to your doctor and to any hospital which is treating you and to your nearest relatives.
If your living will is verbal, make sure close relatives or friends are aware. We would advise making a written advance directive so that there is no doubt of your wishes. In stressful times, relatives can forget exactly what you told them.
Further information
Net Lawman provides a free living will template that you can use in England and Wales.