A Living Will – what is it and do I need one?
An Advance Decision, also called a “Living Will” is a legally binding statement you can make while you have mental capacity. It sets out that you have decided in advance that you refuse to receive life-sustaining treatment, in certain specific circumstances. It only becomes relevant if you’re unable to make or communicate your own decisions at that time.
What should I include in my Advance Decision?
You should include as much detail as you can about the circumstances in which you would like to refuse treatment which might keep you alive, such as CPR, ventilation or life-sustaining antibiotics.
Can I use it to tell nurses about my care preferences too?
When you make your Advance Decision, you may also want to make an Advance Statement, which covers any general wishes about your care. It can cover anything you feel you’d like to be comfortable while being cared for, for example to tell healthcare professionals what food you like to eat, what clothes you like wearing, and who you would like to visit you. An Advance Statement is not legally binding, but can be helpful guidance for those looking after you.
I already have a Lasting Power of Attorney – can’t my attorneys make this decision for me?
Your Health and Welfare Lasting Power of Attorney (LPA) appoints attorneys to make the decisions that they think you would make in the circumstances if you were able to do so. But LPAs do not contain details – accompanying your LPA with an Advance Decision will provide helpful guidance to your attorneys on your wishes.
Your attorney can’t agree for you to receive treatment you’ve refused, as long as you make your Advance Decision after you make your LPA. Any Advance Decision you make before signing your LPA will become invalid if you’ve used your LPA to give your attorney the power to make the same decision covered by your Advance Decision.
How do I make an Advance Decision?
It’s really important that you discuss your feelings with your close friends and family, and you may wish to talk to your doctor about it too. To be legally binding, your Advance Decision must be written down, signed by you and witnessed. It must set out clearly the treatments you wish to refuse, and the circumstances in which you want to refuse them.
You must also include a statement that the Advance Decision will apply even if your life is at risk.
Can a solicitor help me to make sure my Advance Decision is legally binding?
You can make your own Advance Decision and Advance Statement. However you may wish to ask a solicitor to help you to express your wishes clearly, and make sure your Advance Decision complies with the provisions of the Mental Capacity Act. A solicitor can also check the terms of any life insurance policies to make sure that they are not invalidated by your Advance Decision.
You may also want to ask a solicitor to make sure your Advance Decision interacts correctly with any LPA you’ve already made, and doesn’t invalidate it. If you want to arrange an LPA, your solicitor will help you to make sure it complies with the requirements of the Office of the Public Guardian (OPG), and is registered correctly. Your Advance Decision will be sent to the OPG with your LPA.
A solicitor can also store your Advance Decision and Advance Statement along with your Will and your Lasting Powers of Attorney, so that they are easily available when the time comes.
If you would like to discuss making a Living Will, Advance Statement and Lasting Powers of Attorney, please contact Bethan Chant at bethan.chant@theburnsidepartnership.com.