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Living Wills (Advanced Decision)

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A Living Will is a term used for an advance decision. It is a statement setting out your wishes in relation to medical treatment should you become terminally ill or incapacitated. You have to be over the age of eighteen and have the required mental capacity to do so. If you want to refuse life sustaining treatment an advance decision must be in writing.

A Living Will is neither a right to life nor a right to die but a right to choose. An advance decision can only be used to refuse a treatment and not to ask for a specific treatment. It cannot be used to ask for a procedure that is unlawful.

It needs to be a clear statement of both the decision and the treatment to be refused, and also needs to set out the circumstances when it applies. The statement should be as detailed as possible. There will also be a statement that this direction is only to be used if the person making it no longer has mental capacity.

Advance decisions now have a legal status under the Mental Capacity Act 2005 and Health Care Professionals must follow such an advance decision if it is valid and applicable to the situation. There may be either criminal or civil consequences if a valid advance decision is ignored. It is important that your GP or treating Health Practitioner is aware of the existence of your Living Will. It is your responsibility to ensure your advance decision is drawn to the attention of your GP and other doctors who treat you and if it is written down, where they can find it.

Health and Welfare Attorneys

Where someone is looking generally at preparing for when they are older and considering putting something in place to cover welfare situations that may arise in the future, then it is appropriate to consider making a Health and Welfare Lasting Power of Attorney to appoint someone to make health and welfare decisions on your behalf should you lose mental capacity.

Situations that may give rise to a need for a Lasting Power of Attorney for Health and Welfare include:

  • Couples are not married or in a registered civil relationship civil partnership but wish their partner to be the point of contact for welfare decisions
  • There is no family
  • A non-family member is their preferred point of contact
  • There is a mental health issue such as bi-polar that can come and go
  • One spouse is well, and one spouse is in need of care and there is a dispute between the well spouse and social services
  • People want to make an advance directive decision- you can make a Living Will at the same time.

If you wish to make a Living Will or a Lasting Power of Attorney then please contact one of our solictors on 0800 975 2463.

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FAQs

What is a Living Will?
 
 

A Living Will, also known as an advanced decision, is a legal document that sets out any treatments you don't want to have in the future if you lose the required mental capacity to make those decisions yourself. It will only come into effect if you cannot communicate such decisions or you do not have the mental capacity to do so (e.g. you are suffering from say advanced dementia or are in a coma)

A Living Will to refuse treatment:

  • Must be clear about the circumstances under which you would not want to receive the specified treatment
  • Should specify whether you want to receive the specific treatment, even if this could lead to your death
  • Specify which treatments you do not wish to receive, even if this results in your death

A Living Will cannot be used to request certain treatments or ask for your life to be ended.

An example of a Living Will would be to state whether you would want life-saving treatment if you were to have a terminal illness, end-stage condition or end up in a vegetative state and there was no reasonable expectation of recovery.

What is an advance decision?
 
 

An advance d decision is another term for a Living Will. The correct legal term for this is an Advance Decision to Refuse Treatment and in England and Wales, they are legally binding, as long as they meet certain requirements. If a healthcare professional does not follow an advanced decision that they know you have made they can be taken to court. If you need advance decisions assistance, then please contact us today.

Do I need a Living Will?
 
 

If you have a terminal illness, a condition that may end up affecting your capacity to make your own decisions or are in a line of work where life-threatening injuries are a higher than average possibility then its it is recommended to make a Living Will. A Living Will outlines in what circumstances you want to refuse life-saving treatment.

It is essential that you discuss your Living Will with your GP and other medical professionals and it is recommended that you also speak to your family about your wishes. You can ask your doctor to include a copy of your Living Will with your medical records. Also, any medical professional that treats you should take 'practical and appropriate steps' to find out if you have made a Living Will.

How to make a Living Will?
 
 

As long as you are deemed to have capacity then you can make a Living Will. There are some requirements for a Living Will to be valid and applicable, which are:

  • You must be 18 years old or over
  • Have the capacity to make a Living Will
  • State the treatments you want to refuse even if your life is at risk or shortened as a result
  • State the circumstances where you want to refuse treatment
  • Sign it and have it witnessed

The Living Will witness requirements are that you have at least one witness who will also sign the document. If you are unable to sign the document yourself, you can ask someone else to do so on your behalf, however, they cannot also be the witness.

It is not a requirement to use a solicitor to create a Living Will however, it is recommended as they can offer their expertise to ensure the right language is used and that the Living Will meets all the legal requirements to make it valid.

What to include in a Living Will?
 
 

You should state that the document should be used if you ever lack the capacity to make treatment decisions yourself. You will also need to include two important points - state precisely what treatments you want to refuse and under what circumstances you want to refuse them.

Treatment refusal - if, under certain circumstances, you wish to refuse treatment you will need to include state that you understand that the refusal of treatments can result in your life being shortened or death.

Circumstances - you will need to outline when you want to refuse treatments. For example, if you end up in a vegetative state you may wish to refuse treatment such as CPR.

What is the cost of a Living Will?
 
 

The cost of a Living Will is dependent on the complexity of it. In some cases, it may be possible for us to complete a Living Will for a fixed fee.

Can a Living Will be overridden?
 
 

As long as a Living Will is considered valid and applicable it is legally binding and cannot be overridden. If a health professional ignores your advanced decision, then they can face prosecution.

To be applicable your Living Will must apply to the situation and treatment in question and in current circumstances. You must also lack the capacity to make a decision about your medical treatment and there be no reason to think that you may have changed your mind.

Doctors should consider whether there are new developments you did not anticipate at the time, which could have affected your decision; for example new developments in medical treatment, or changes in your personal circumstances.

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Contacting Us

Monday to Friday: 09:00 to 17:00
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