As a result of much publicity recently in the press and social media, the public is increasingly becoming aware of the ability (and, in many people’s minds, the need) to make a ‘Living Will’. The legal term for this document is an ‘Advance Decision’.
Simply, a Living Will dictates what should happen to you in the event that you cannot communicate during or following any medical treatments or procedures.
If you want to make sure that healthcare professionals do not strive to keep you alive at all costs in certain stated circumstances, you should sign a Living Will in advance refusing treatment. Provided it is signed by you and suitably witnessed, a healthcare professional must, by law, honour your wishes.
Without a Living Will in place, if you become ill and lack the mental capacity to instruct your doctor or other healthcare professional that treatment should be withdrawn, they will need to make a ‘best interests’ decision. In considering what is in your best interests your doctor may talk to your nearest and dearest but the decision on whether to continue or stop treatment is, ultimately, your doctor’s.
If you have signed a LPA for health and welfare decisions giving your attorney the ability to consent or refuse ‘life sustaining’ treatment (which will include artificial hydration and nutrition, and resuscitation), your attorney can make those decisions. If you have any doubt that your attorney may not follow your wishes (if they know what those wishes are) or if, perhaps, you don’t want to put that responsibility on your attorney, you should instead make a Living Will.
If you sign a Living Will after making the LPA, the Living Will will take precedence on life sustaining treatment decisions and your attorney cannot override that. Your attorney will still be able to use the LPA to act for you on all other matters.
If the Living Will predates the LPA, your doctor must comply with your attorney’s instructions and that overrides anything you have stated in your Living Will.
It is important that you regularly review and renew your Living Will because if your doctor thinks your wishes have changed since you made it, they may not honour it. We recommend that you renew the document if you develop a new illness and specifically mention that fact in it, and in any event re-sign it every two years.
It is important that you lodge a copy of your latest Living Will with your doctor so that it is on your notes and, if you are in hospital, that it is on your notes there.
Unlike a Living Will (or Advance Decision) what you say in an Advance Statement does not legally have to be honoured and followed by your doctor or anyone else. An Advance Statement sets out your feelings, wishes and guidance on wider decisions than just the refusal of certain medical procedures.
For instance, you can set out what you would wish to happen in the future if you lose mental capacity and should it become difficult for you to manage on your own at home, whether you would wish to remain in your own home or which care home you would want to be in.
Anyone making a best interests decision for you is not obliged to follow the wishes set out in such a document but would normally find that guidance from you very helpful when making a decision.
Our specialist private client lawyers will be happy to give you expert advice on preparing your Living Will as well as Lasting Powers of Attorney and Advance Statements. Click here to contact your local office and find out more.