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Living Wills

Also known as an advance directive, a living will is not, in fact, a traditional ‘will’. It is a formal document in which you can set out, in advance, what kind of medical treatment you wish or do not wish to receive in the event that you become incapable of communicating your own wishes. It doesn’t deal with your estate and funeral request for example. You’ll need to make a will to deal with these issues and can contact our wills and probate specialists for a free of charge meeting in which you can discuss this.

Last updated on December 28th, 2020 at 08:47 pm

Key Points

  • Living wills aren’t like a normal will – they’re for expressing your wishes about your medical treatment should you become unable to communicate those wishes
  • You can specify whether you want to receive or withdraw from artificial feeding or breathing, and life support, and in what circumstances
  • A living will is different to lasting power of attorney – which is more wide-ranging
  • For a living will to be valid, you’ll have to be of sound mind when you make it, discuss it with a doctor and have it witnessed by an independent person over 18 who isn’t a beneficiary of your will or close relative

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Who makes a living will?

Living wills are commonly made by people with terminal illnesses.  However, any adult can make one, providing they have mental capacity when they sign it.

You can use a living will to express which medical treatments, such as artificial breathing or feeding, you want and don’t want in the event of terminal illness.  The House of Lords has affirmed that artificial feeding constitutes “medical treatment” and therefore its withdrawal does not amount to murder.  It’s important that you state clearly in what circumstances you wish artificial feeding to be discontinued in your living will.

Are living wills legal?

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

If you make a living will, its legal effectiveness will depend on your competence at the time of signing and on your decision being an informed one.  For this reason it is advisable that you discuss your plans with a doctor (who need not be your own GP) and for the doctor to indicate either on the document itself or in a separate note that discussion has taken place.

English law draws a sharp distinction between acts and omissions.  You cannot require a doctor to take a positive step which would cause your death, so any such request within a living will would not be binding.

Your wishes should be made very clear in the living will and it should be signed and dated, preferably in the presence of an independent witness who should be over 18 and should not be a close relative or a beneficiary in your will.

What should I do with a living will once I have made it?

The aim of a living will is to make sure that it’s acted upon if and when you are unable to communicate your wishes yourself.  With this in mind, it needs to be kept in a place from where it can be produced in that event.

This can be with your own GP, as long as it’s not simply put in a file and left there when you are admitted to hospital.

You could take several copies and give them to your next of kin or partner and perhaps one to your solicitor in the hope that it will be produced when required, but you do need to keep track of who has them in case you wish to amend them in the future.

You may prefer to have personal welfare lasting power of attorney drafted by our Sheffield solicitors.  This is a statutory document in which you can specify how you want health issues to be dealt with in the event that you become unable to make the decisions yourself.  In this document, you appoint an attorney to carry out your wishes. Please see our pages on lasting powers of attorney.

How can Graysons help?

It is essential that living wills 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 highly experienced in helping clients to make effective living wills and are happy to offer a FREE no obligation consultation to anyone wishing to explore the possibility of a living will.  Contact us now to make an appointment.

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