What is a living Will?

A living will is another name for an advance directive or advance decision.  They are used to make advance decisions about refusing medical treatment and can only be used for this purpose.

Advance decisions are made by people who have strong feelings about the type of treatment that they would not wish to receive if, in the future, they were unable to consent to or refuse treatment. In particular they are often used by people who have been diagnosed with a terminal or degenerative illness.

Requirements of an advance decision

In order to make a valid advance decision a person must be over the age of 18 and have mental capacity to make the decision.

An advance decision does not have to be in writing to be valid (unless it relates to refusing life-sustaining treatment) but it would be wise to put it in writing so that there is evidence of your decision.  There are additional legal requirements which must be met if you want to make an advance decision to refuse life-sustaining treatment.

Limitations

There are certain things that an advance decision cannot be used for.  They cannot be used to:

• Require healthcare professionals to provide particular treatment.
• Refuse basic care such as the provision of warmth or shelter, assistance in bathing or offering food and drink by mouth. However, you can make a legally binding advance decision to refuse life-sustaining treatment which includes being fed artificially.
• Request someone to carry out an illegal act such as assisted suicide.

Effect of advance decisions

Advance decisions are just as valid as a refusal of treatment by a person who has mental capacity.  This means that if a medical professional still carries out or continues the treatment which has been refused they will risk criminal and civil liability. Advance decisions can overrule:

• The decision of an attorney appointed under a Health and Welfare Lasting Power of Attorney (LPA) as long as it was made after the LPA;
• The decision of a court appointed deputy; and
• Legal provisions which allow healthcare professionals to give treatment to people who lack mental capacity as long as they believe it to be in their best interests.

Advance decisions cannot be overruled by the Court of Protection.

Alternatives to an advance decision

Alternatively you might choose to appoint one or more attorneys to make decisions about your health and welfare under an LPA. People appointed to act under an LPA can make many decisions about your health and welfare if you lose mental capacity to make them yourself. They can also decide whether to consent to life-sustaining treatment if you give them this power.

Things to consider after making an advance decision

It is important that relevant people are aware of your advance decision. It is important that healthcare professionals are aware of your decision and it may be a good idea to provide a copy to your GP which can be kept with your medical records. You should also inform family members so they can tell medical professionals about your advance decision.

Changes in your circumstances or advances in medical treatment may affect your decision so you should regularly review and update it as necessary.

You can change or withdraw an advance decision at any time providing you still have mental capacity.  You should make sure you tell anyone who was aware of the original decision that you have withdrawn it or changed it.  If the original was in writing it would be wise to destroy it in order to avoid confusion.

For more information on advance decisions, contact Laura Brereton on 01772 258321. Laura works within the employment law division of Harrison Drury’s team of lawyers in Preston. The firm also has offices in Lancaster, Clitheroe, Kendal and Garstang.