Living Wills 

A “Living Will” is a term used for documents or verbal statements in which you have set out your wishes and views about your future care and medical treatment.  Such wishes can then be taken into account if you become unable to make decisions for yourself relating to these issues, such as if you are unconscious or have lost mental capacity.  There are two types of ways in which you can express your wishes about future treatment.  These are known as Advance Statements and Advance Decisions to Refuse Treatment. 

Advance Statements are general statements setting out your wishes regarding your future care and treatment.  It can refer to types of treatment or care you would like to have or not have in the future, and can also reflect your religious beliefs or choices regarding what food you would like to be given or not given, for example if you are a vegetarian.  They are not legally binding on the people arranging your care in the future, but they should be taken into account by those people.  You can include an Advance Statement within a Personal Welfare Lasting Power of Attorney (see article regarding Lasting Powers of Attorney) as guidance to be taken into account by your attorney, or you can prepare one as a separate document.

Advance Decisions to Refuse Treatment, if they meet the requirements set out in the Mental Capacity Act 2005, are legally binding upon the people dealing with your care in the future.  Such an Advance Decision can only be to refuse treatment, as it is not possible for anyone to insist on having a particular form of treatment if the medical practitioners dealing with that person believe that it conflicts with that person’s best interests.  Advance Decisions to Refuse Treatment do not have to be in writing; they can be verbal statements to your doctor, for example, but it will make them more easily enforced if they are in writing. However, if they relate to the refusal of life-sustaining treatment then again they must be in writing, and signed by you.

As set out above, if you put in place a Personal Welfare Lasting Power of Attorney you need to decide whether or not your attorneys should have the power to consent to or refuse life-sustaining treatment on your behalf.  If you do not wish to make a Personal Welfare Lasting Power of Attorney, or if you feel that you do not want to give your attorneys the responsibility of making that decision, then you can make an Advance Decision to Refuse Treatment relating to life-sustaining treatment as a separate document.  You can also make an Advance Decision to Refuse Treatment relating to any other form of treatment as a separate document.

Living Wills can therefore assist your loved ones as it will mean that they will know what you would have wanted to be done regarding your care, and your treatment.

Next Steps...

For further wills and probate, contentious probate and enduring power of attorney in the UK advice or to speak to one of our expert team of wills and probate solicitors please contact Helen Phillips or Elizabeth Smith by telephone on 020 8363 8341.

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