Wills, Trusts and Probates

Living Wills

What is a Living Will?

A Living Will is not a Will at all. It is a signed and witnessed statement of your wishes concerning medical treatment if your condition is such that you cannot communicate with your Doctors. Another name for a Living Will is an “advanced directive”.

As medicine develops, so the ability to prolong life by artificial means increases. This may include hooking you up to a machine when you can no longer breathe independently; resuscitating you after your heart has stopped, feeding you intravenously, performing operations or administering drugs which are unlikely to aid your recovery but simply prolong your life.

By making a Living Will you will have your say as to how you want to be looked after, if a time comes when you are unable to communicate what you want for yourself.

What can a Living Will say?

A Living Will can be as general or as specific as you wish. It can cover all life prolonging measures and treatments or just particular ones. It can also list treatments you would or would not want. It can expressly state whether, for example, “I want to be allowed to die naturally” or, conversely, “Please keep me alive at all costs.”

These are very sensitive and personal issues and we can sympathetically tailor a Living Will to your particular needs.

You can also express your wish that a partner, family member or friend be allowed to take part in decisions concerning your medical treatment if you are unable to do so.

Can I change my mind?

Yes. The Living Will has no effect if you can communicate with your Doctors and can be revoked at any time.

When does a Living Will come into force?

Only when a person who signed it cannot communicate. Often the Living Will will state that it will only come into force if the person who signed it is also suffering from a serious, incurable physical illness or impairment.

Will a Life Assurance Policy be affected by the making of a Living Will?

It is unlikely that a policy would be influenced by making a Living Will. A Living Will should not fall foul of any suicide clause in the policy.

If you ask us to do so we will look at any particular policy on your life to advise you as to any conflict.

What is the legal status of a Living Will?

In England and Wales, a person who can give consent to medical treatment can also refuse such treatment or care, even where such refusal has the effect of shortening life. Treatment in the absence of consent may constitute an assault. The person has the right to refuse treatment or care in advance in a Living Will and have that right respected. In April 2007, the Mental Capacity Act 2005 (“The 2005 Act”) came into force and put Living Wills on a statutory footing and confirmed their validity provided that the terms of any document complied with the provisions laid down in the Act.

The Code of Practice to the 2005 Act lays down guidelines that must be followed by healthcare professionals.

Are Living Wills encouraging Euthanasia?

No. Euthanasia involves taking active steps to help people die. A Living Will which refuses treatment only asks medical staff not to intervene (other than to ease the pain and for the comfort of the Patient) and to allow the Patient to die naturally. The 2005 Act specifically confirms that a Living Will cannot be used for euthanasia.

Can someone consent to or refuse treatment for me?

Until the Mental Capacity Act came into force, the appointment of someone (a “proxy”) to speak on your behalf when you could not do so was not legally binding. However, Doctors had been encouraged to respect such wishes expressed in a Living Will and any views expressed by the proxy on their behalf. From April 2007, such an appointment can be made either in a Welfare Lasting Power of Attorney or in a Living Will.

Your Doctors may speak to a member of your family about your medical treatment. This may not be what you would want, in which case your wishes should be stated in your Living Will.

What makes a valid Living Will?

This is now laid down in the 2005 Act. The person who makes it must:

  • Be over 18;
  • Be mentally capable at the time it was made;
  • Specify the treatment that is to be refused; and
  • Set out the circumstances when it will apply.

In addition, the decision must be both valid and applicable. It will be invalid:

  • If the person has cancelled the Living Will whilst they are still capable; or
  • Has subsequently made an LPA giving someone else authority to consent to or refuse treatment specified in the Living Will; or
  • If they have acted inconsistently with the terms of that Living Will.
  • It will not apply if:
  • The person still has capacity to make decisions; or
  • The proposed treatment is not specified in the Living Will; or
  • The circumstances are different from those set out in the Living Will; or
  • There are reasonable grounds for believing that circumstances have arisen which were not anticipated when making the Living Will and which would have affected the Living Will had the maker anticipated them at the time.

Living Wills need to be kept under review as the length of time from creation to use can be a factor.

What is the effect of a valid and applicable Living Will?

It will be as effective as if the maker was capable and refused treatment. The healthcare professional is obliged to carry out the terms of the Living Will. Treatment contrary to that document cannot lawfully be given and the person giving it may face both civil and criminal liability. If the healthcare professional has no knowledge of the Living Will then they would not be liable for treatment given. Equally, they would not be liable if they withdrew treatment if they had reasonable grounds for believing that a Living Will had been signed.

Does a Living Will have to be in writing?

Strictly speaking, no, but there would be evidential problems if it was not. In addition if it is intended to apply to the refusal of life-sustaining treatment then the 2005 Act requires that:

  • It is in writing; and
  • Signed by the maker, or at their direction, in the presence of a witness who witnesses their signature; and
  • Must contain a statement by the maker that it will apply to that treatment even if their life is at risk.

All Living Wills signed before the 2005 Act will need to be amended or re-written to contain this last statement for them to continue to be valid if they refuse life-sustaining treatment.

Who should keep the Living Will?

A copy of the Living Will should be placed with your medical records so that your Family Doctor is aware of your wishes. It is also advisable to inform your Family; you can place a copy amongst your own personal papers, in a place made known to them. Any proxy that you appoint should also have a copy. You might also decide to carry a card with you, rather like carrying a Donor Card, stating that you have made a Living Will, and where it can be found. If you change your mind, you will need to arrange for copies of your Living Will to be returned to you and destroyed.

What about advances in medicine?

Most Living Wills are written so that their terms can take some account of medical advances. Living Wills should be read in the context that they were written and Doctors should behave accordingly. If your condition is curable, but would not have been when you signed the document, a Doctor must bear this in mind in deciding your true intentions and best interests. Nevertheless, keeping your Living Will up to date will help your Doctor to be sure of your exact wishes.

An out of date Living Will can kill you – if your views or circumstances change then you may need to change your Living Will.

If you wish to discuss Living Wills please contact Henry Anstey using the link below.

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Henry Anstey