Wills, Estates & Trusts

Living Wills

Otherwise known as “Advance Directives”

A living will is a formal document in which people can set out in advance what kind of medical treatment they wish or do not wish to receive in the event that they subsequently become incapable of communicating their own wishes.

A living will is concerned with medical treatment only and does not deal with a person’s property or funeral requests, which should be dealt with by means of an ordinary will.  The term “living will” is therefore to some extent a misnomer and the term “advance directive” is often used in its place.

Such documents are commonly made by people with terminal illness but can be made by any adult at any stage of life provided that they have mental capacity at the time the document is signed.

Living wills have been common for many years in some countries.  It has long been accepted in English law that doctors must take into account the wishes of an adult patient who is conscious and of sound mind. 

The legal effectiveness of a living will depends on the person’s competence at the time of signing and on the decision by the patient being an informed one.  For this reason it is advisable for a person considering making a living will to discuss the matter with a doctor (who need not be their own GP) and for the doctor to indicate either on the document itself or in a separate note that discussion has taken place.

In the document the patient can express his or her wishes as to the medical treatment he or she wants or does not want in the event of terminal illness.  Patients can also record particular types of medical treatment which they may or may not wish to have, e.g. artificial breathing or feeding.  The House of Lords has affirmed that artificial feeding constitutes “medical treatment” and therefore its withdrawal does not amount to murder.  It is important that patients state clearly in a living will in what circumstances they wish artificial feeding to be discontinued.

English law draws a sharp distinction between acts and omissions.  It is clear that a patient cannot require a doctor to take a positive step which would cause the patient’s death and any such request within a living will would not be binding.

Having clearly stated in the living will the person’s instructions with regard to medical treatment, the document should be signed and dated, preferably in the presence of an independent witness.  The witness should be over 18 and should not be a close relative or anyone who stands to gain anything by the death, e.g. a beneficiary under a will.

Finally, and on a practical note, thought must be given as to where the signed living will is to be kept or who is to keep it.  Clearly the aim is to ensure that the living will (or a copy of it) is produced in the event that a serious medical treatment decision has to be made when the patient is incapable of communicating his or her own wishes.  It is of little use depositing the document with the patient’s general medical practitioner if it merely remains in a file at the surgery when the patient is admitted to hospital.  One solution is to take several copies and for the doctor, next of kin (or partner) and the solicitor’s office all to retain one - in the hope that a copy will be produced in the event of need.  It is important, however, to keep track of all such copies in case the patient wishes in the future to cancel or amend the document.

Graysons solicitors are highly experienced in helping clients  make Living Wills and it is essential that they are written in the correct legal manner to ensure the best chance of them being valid and acted upon should the need arise.

We are happy to offer a FREE no obligation consultation to anyone wishing to explore the possibility of a Living Will.

Contact us for a consultation or follow the links for more information.