What is a Living Will?
A Living Will is a legal document that provides absolute clarity to others, such as your family or a doctor about what your wishes are in relation to your health and care.
Often referred to as An Advance Directive or Advance Decision, a Living Will can be used to record your decisions as to the types of medical treatment and care that you want to refuse and under what circumstances these wishes must be applied, should you no longer have the capacity to communicate these decisions yourself.
Why is it important to have a Living Will?
Living Wills are important to have if you have specific wishes about your health and care, and they are legally binding on healthcare professionals.
How does a Living Will (Advance Decision) work?
An Advance Decision Living Will effectively does what it says on the tin: it is a way for you to make decisions in advance of you being unable to make those decisions about your care and the medical treatment you want to receive. Once signed, the Advance Decision is legally binding.
When you make an Advance Decision, those responsible for your care need to know it exists and where to access it to ensure their legal obligation is met.
It is important to remember that by making your Advance Decisions, you are also removing that often painful and difficult decision-making process from the people who care about you most, and who are likely to find making the decisions you have made for yourself unbearably difficult to make on your behalf.
What can a Living Will (Advance Decision) do?
Living Wills allow their creators to set out clear and unambiguous directions about the medical treatments and care they do, or don’t want to receive in the event of them being unable to convey these wishes due to incapacity.
For example: refusing particular medical treatments in certain circumstances, such as CPR, life-sustaining treatment, or having antibiotic medication to treat a life-threatening infection.
What can’t a Living Will (Advance Decision) do?
A Living Will, unlike a Health & Welfare Lasting Power of Attorney (LPA) only records your medical treatment wishes. An LPA has a broader remit in recording your wishes relating to other welfare matters. This might include where you live, your long-term care needs as well as your medical treatment wishes.
While a Lasting Power of Attorney allows you to nominate someone else to make decisions on your behalf, request a particular medical treatment, or refuse basic treatment and food and water, a Living Will only allows for your documented wishes to be followed.
A Living Will cannot be relied upon if a particular treatment or circumstance has not been included in the document. Careful drafting is essential and we would always recommend seeking expert help and advice when creating a Living Will.
In the event that you were suffering from a medical condition, or in a position that had not been specified within the document, the physician treating you will determine what is in your best interests.
Who should have a Living Will (Advance Decision)?
As soon as we turn 18 we are treated as adults under the law in England. That means that our parents or guardians can no longer make decisions on our behalf if we have the mental capacity to do so ourselves.
Our expert advice is that anyone of 18 years or more should have as a minimum a Living Will in place and, ideally, put a Lasting Power of Attorney in place for both Health & Welfare and Property & Finance.
More often, we see people only considering a Living Will when they have had a serious health issue or a terminal prognosis. An Advance Decision to refuse treatment gives them control over what happens at the end of their life, ahead of a time when they are unable to make their own medical decisions.
Regularly Review and Update Your Living Will (Advance Decision)
A well-drafted Will should ensure that the vast majority of future life changes have been predicted and allowed for through the crafting of the Will. However, it is always a good idea to review your Will periodically to ensure it still does what you originally intended it to do.
The key triggers to start a Living Will (Advance Decision) Review are:
- You re-marry. A marriage revokes a Will in England and Wales (excludes Scotland)
- You get divorced. A divorce will not revoke a Will
- Children or stepchildren have come into the family that may change your wishes
- You may decide that a Lasting Power of Attorney is the most appropriate protection for you (this supersedes any existing Living Will).
- You have a change in your health, such as a terminal illness
A change in your circumstances since you signed your Living Will can cast doubt on whether the document is still ‘valid, applicable, and legally binding’, so a review and update is very important.
Who should I tell about my Living Will (Advance Decision)?
A Living Will is of little use if no one knows you have one! We always recommend to our Clients that they hold a family meeting to explain that they have put a Living Will in place, what it sets out and why they have chosen to make these wishes. You should also tell someone you trust where they can locate a copy of your Living Will so they can access it quickly if and when the time comes.
While they may not all like and agree with your decisions, it ensures everyone is informed and can respect your wishes. It also means they are not finding out at what could be a much later and more emotional time in your life.
We also recommend discussing your Living Will with your GP prior to making it. They may be able to explain the effect of any instruction that you include to you and provide guidance on the content of the statements you wish to include.
You are not legally required to seek your doctor’s advice or have them witness your Living Will, however as a means of mitigating the risk of any challenges as to the validity of the Living Will, a signed statement from your GP confirming that you had mental capacity at the time of signing the document can be very helpful.
Which takes precedent: A Living Will (Advance Decision) or a Health & Welfare Lasting Power of Attorney (LPA)?
A Health and Welfare LPA that has been signed and dated after a Living Will was signed and dated renders the Living Will invalid if the LPA authorises an appointed Attorney to make the same decisions about life-sustaining treatment. It is, however, possible to include wording in the LPA so that it does not invalidate the Living Will.
If however, a Living Will has been signed and dated after a Health & Welfare LPA has been registered with the Office of the Public Guardian, any of the Living Will content that relates to allowing your Attorneys to refuse or give consent to life-sustaining treatment on your behalf take precedence over the LPA content.
In the event that you do not have a Health & Welfare Lasting Power of Attorney but wanted to ensure some of the additional benefits that an LPA can provide regarding your general welfare matters, such as where you live, then you can choose to sign an Advance Statement. Through an Advance Statement, you can record your decisions surrounding such matters to ensure clarity for people involved in your care.
The Advance Statement, like an Advance Decision, is legally binding and must be followed by both any healthcare professional or Attorney involved in your care.
What is a Living Will (Advance Decision) vs a Will?
Both documents serve very different purposes, although their names can be somewhat confusing.
On a very basic level, a Will is a legal document that deals with the division and allocation of your property and assets in the event of your death. It can also be used to detail your wishes regarding the guardianship of any children under 18, as well as specifying your wishes regarding matters like the type of funeral you’d like.
Living Wills are a legally binding vehicle for you to document your wishes regarding your medical treatment and care, in advance of the potential day that you no longer have the physical or mental capacity to express them in person.
Who can help me write a Living Will?
At Redwood, we offer FREE professional Estate Planning advice through our Online Wills, Trusts & Estate Planning Webinar, as well as a complimentary Will Review Service for those who need to have their existing documents reviewed and updated.
Our experts are ready to help you draft the right Will for your needs, including Living Wills, Basic Wills, Estate Planning, and Lasting Powers of Attorney.