Lavanya Hart, a solicitor in our Wills and Probate Team, explains what Living Wills are and answers some of the most common questions about Living Wills.
What is a Living Will?
A Living Will is a legal document which sets out your wishes regarding your health and care. A Living Will may also be referred to as an Advanced Directive or an Advanced Decision.
A Living Will is used to record your decisions regarding any medical treatment and care you want to refuse and if there are any circumstances where your wishes are to be applied if you no longer have the capacity to communicate such decisions yourself.
What are the differences between a Living Will and a Will?
Simply put, a Will is a legal document that contains your instructions as to how you want your property and assets to be divided and distributed when you die.
A Living Will is a legal document that contains your wishes regarding your medical treatment and care during your lifetime, in advance of you potentially no longer having the mental or physical capacity to make these decisions yourself.
How does a Living Will work?
A Living Will is used by those wanting to make decisions in advance about care and medical treatment. Once correctly signed, a Living Will is a legally binding document. Once a Living Will has been put in place, it is important for anyone responsible for your care to know it is exists and where they can access it to ensure they are fulfilling their legal obligations.
Why would I need a Living Will?
Living Wills allow their creators to specify clear and unambiguous instructions about the care and medical treatment they do or do not wish to receive if they are too ill to express these wishes themselves.
It is also important to remember that by making a Living Will, you are also removing an often painful and difficult decision-making process from your loved ones. Your loved ones are likely to find making such decisions you have made for yourself extremely difficult to make on your behalf.
Is a Living Will the same as a Lasting Power of Attorney?
A Living Will is not the same as a Lasting Power of Attorney.
A Lasting Power of Attorney for Health and Welfare is a legal document where you appoint someone you trust to make decisions about your care and wellbeing if you no longer have the capacity to make those decisions yourself.
A Living Will is a legal document which sets out instructions about your care and treatment if you no longer have the capacity to make those decisions yourself.
The Lasting Power of Attorney you have appointment someone you trust to make decisions for you. The Living Will sets out directions you wish to be followed.
What can a Living Will actually do?
A Living Will can specify detailed instructions about medical treatment you do or do not wish to receive. For example, refusing life sustaining treatment, receiving anti-biotic medication to treat a life-threatening infection.
The creator of the Living Will is the one solely in control of what has been recorded in their instructions as to their care and treatment.
Is there anything a Living Will cannot do?
Unlike a Lasting Power of Attorney for Health and Welfare, a Living Will can only record your medical treatment wishes.
A Lasting Power of Attorney has a wider scope allowing you to expand your wishes regarding welfare matters. For example, where you live, if you have any long-term care needs in addition to your medical treatment wishes.
A Living Will cannot be relied on if particular treatments or circumstances have not been specified in the document. As such, it is important that your Living Will has been carefully drafted. If you were to suffer from a medical condition or be in a situation that had not been specified in your Living Will, your medical professional treating you will determine what would be in your best interests.
Should I make a Living Will over a Lasting Power of Attorney?
Once we are 18 years old, our parents or guardians are no longer able to make decisions on our behalf if we have the mental capacity to do so ourselves.
Ideally, anyone over the age of 18 years or more should put a Lasting Power of Attorney in place for both Health and Welfare and Property and Finances.
More often, people will consider a Living Will if they have been diagnosed with a serious illness or terminal prognosis. A Living Will can give them control over what happens at the end of their life ahead of time when they may not be able to make their own decisions regarding medical treatment.
Living Wills do not need to be registered with the Office of the Public Guardian but Lasting Powers of Attorney do. The Office of the Public Guardian are currently estimating 20 weeks to register Lasting Powers of Attorney. For this reason, one may consider a Living Will over a Lasting Power of Attorney, if they feel they may not have sufficient time to make arrangements regarding their medical treatment decisions.
It is best practice to make a Living Will or Lasting Powers of Attorney whilst you are in good health and are able to really think about what your wishes are or who you wish to entrust with the responsibility of making decisions on your behalf should no longer be able to make decisions yourself.
Can I make a Living Will and Lasting Powers of Attorney?
A Lasting Power of Attorney for Health and Welfare signed and dated after a Living Will renders the Living Will invalid if the Lasting Power of Attorney authorises the Attorney to make decisions regarding life-sustaining treatment.
A Living Will signed and dated after a Lasting Power of Attorney for Health and Welfare has been registered with the Office of the Public Guardian, any content in the Living Will relating to your Attorney’s being able give or refuse consent to life-sustaining treatment on your behalf takes precedence over the contents of your Lasting Power of Attorney.
Whilst it is possible to include wording in your Lasting Power of Attorney so it does not invalidate your Living Will, it is also possible to specify your preferences and instructions regarding your health and well-being in a Lasting Power of Attorney.
Do I need to tell anyone if I make a Living Will?
We recommend that you inform your loved ones that you have made a Living Will and explain what is sets out and the reasons behind your wishes. You should also inform them of where they can locate a copy of your Living Will so it can be easily accessed when the time comes. Although it may be a difficult and emotional conversation to have with your loved ones, it is important that everyone is informed ahead of time. A Living Will is of little use if no one knows of its existence!
Can my Living Will be challenged?
There is a risk that your Living Will may be challenged by family members or loved ones. To avoid this risk, it is important that you inform your family and loved ones of our decisions.
There is no legal requirement to obtain medical advice before making a Living Will. However, if you have been diagnosed with a serious illness, having a signed statement from your GP or a medical professional who has been treating you, can be helpful in the event the validity of the Living Will were to be challenged.
If you make a Living Will, it is important to review this regularly. The passage of time will not invalidate it, but may cast a shadow of doubt, particularly if your circumstances have changed. If there are grounds to believe that your change in circumstances would have altered your decisions set out in your Living Will, your doctors may not be bound by the contents of your Living Will.
Who can I speak to about Living Wills and Lasting Powers of Attorney?
If you are unsure whether a Living Will or Lasting Power of Attorney is the right document for you and your circumstances, or you would like some further advice, please contact our friendly team on 0800 011 9813 and we will be happy to help.
