This article was first published in The Gazette and the full article can be found online here.
A living will ensures that others, including doctors, know your wishes about your health and care. But is it really necessary (and is it enforceable)?
A living will, or advance decision or advance directive, is a document in which you can record your decisions as to the circumstances and types of medical treatment that you wish to refuse in the event that you do not have the capacity to communicate the decision yourself.
Such statements, provided they are valid and applicable, are legally binding on a healthcare professional. A living will cannot include provision for the distribution of your estate on death; testamentary decisions are provided for within your will.
It is possible for anyone over the age of 18 who has mental capacity to implement a living will. Once the document has been signed and witnessed, it will take immediate effect.
Within a living will, you can provide directions to refuse particular medical treatments in certain circumstances, for example: CPR, life support and receiving antibiotics for the treatment of life-threatening infections.
What can’t a living will do?
It is not possible for a living will to nominate someone else to make decisions on your behalf, request a particular medical treatment, or refuse basic treatment and food and water.
It is important to acknowledge that a living will only applies to those treatments and circumstances that are included in the document, and consequently, careful thought must be given to the content of the statements included in the document.
If you were to be suffering from a medical condition, or be in a position that has not been specifically included within the document, then it will be for the treating doctor to determine what is in your best interests. If any part of your statement could be open to interpretation, it may affect the enforceability of the document.
Discuss your living will with your doctor
For this reason, it is good practice to discuss your living will with your GP before it is made, as they may be able to provide guidance on the content of the statements you wish to include, or explain to you the effect of any instruction that you include.
While you don’t need consent from a GP to put a living in will place, or for them to be a witness (as a living will has to be both 'valid and applicable' to be enforceable), it is useful for your GP to sign a statement to confirm that you had mental capacity at the time of signing the document, as this is one of the elements of confirming the document’s validity.
Review your will regularly
It is important to regularly review your living will, as though the passing of time does not invalidate it, a change in your circumstances since you signed it can cast doubt on whether the document is still 'valid and applicable'.
If there are grounds to believe that your change in circumstances would have altered the decisions that you made within the living will, then your doctor may not be bound by the content of the document. A living will that has been regularly reviewed, particularly if this has been done since any change in your health, would assist in confirming to a treating doctor that the will is still valid and applicable.
Health and welfare LPA
Since the introduction of health and welfare lasting powers of attorney ("LPA") in 2007, it is important that people who hold a living will are aware that a health and welfare LPA signed after the living will would make the living will invalid if the LPA permits the appointed attorney to make the same decisions about life-sustaining treatment.
Conversely, a living will signed after an LPA has been implemented would take precedence over the content of the LPA, in so far as it relates to allowing your attorneys to give or refuse consent to life- sustaining treatment.
Whereas the living will can only detail your instructions as to medical treatment, a health and welfare LPA provides your attorneys with authority to make decisions about all your health and welfare-related matters, such as where you live, what you wear and your general welfare needs, as well as allowing the attorneys to make decisions about medical treatment.
If you did not have a health and welfare LPA and wished to confirm your wishes surrounding general welfare matters, then in addition to the living will, it is possible for you to sign an advance statement, which records your wishes surrounding these types of matters.
Once you have implemented your living will it would be sensible to pass copies to your next of kin and to those involved in your care, for example, your GP or a treating doctor if you have already received a diagnosis, and to confirm where the original will is held.
Although a living will can be put in place at any time that you have the mental capacity to do so, it is best put in place well ahead of a time, so you have the time to carefully consider your directions and speak with your GP, as well as your family and friends, about your decisions.