Should I make an Advance Decision (Living Will)?

Posted on By Joanna Pegum
clasping hand of ill person hospital hospice

None of us likes to face the prospect of becoming incapable due to age or illness, and be unable to make decisions about our medical treatment and care. An Advance Decision, also known as a Living Will, (especially in in Scotland) is a written document that allows you to retain control when the time comes. You must be over 18 and have mental capacity, to create one.

What does an Advance Decision cover?

The Advance Decision needs to specify exactly what treatment is to be refused. For example, if you want to refuse life-sustaining medication, such as antibiotics, this must be spelled out in the document, and you must sign the document, and get it witnessed by someone independent, for it to be valid. It is not permissible for you to refuse basic nursing care, or to request for your death to be brought forward by drugs. Euthanasia or assisted dying is illegal.

An Advance Decision can only deal with refusal of specified medical treatment. It does not allow anyone else to make decisions on your behalf (for this you would need a Lasting Power of Attorney), nor can it require medical teams give you specific treatment.

Will anything affect my Advance Decision being implemented?

If you do something later that is deemed inconsistent with the Advance Decision, it may not be implemented. Similarly, if medical staff believe you would alter the decision if you had anticipated the circumstances, then, again, the Advance Decision may not be implemented.

Seek advice

If you have any doubts or questions about these important and difficult decisions, you can discuss them with your advisor.

Heledd Wyn TEP is a Partner at Shakespeare Martineau

What is a living will?

Posted on By Louise Polcaro
Living will

The term ‘living will’ is often used to refer to what’s known as an ‘advance directive’ in Scotland, or an ‘advance decision’ in England, Wales and Northern Ireland. It is a written record of medical treatment that you may or may not wish to receive in the future. It only comes in to effect if you lose mental capacity or otherwise lose the ability to communicate your wishes.

A living will sets out your wishes for future medical treatment should you suffer from any one or more of a list of serious and irreversible medical conditions, including, for example, severe cancer or advanced dementia. Living wills typically state that you are not to receive life sustaining treatment, such as artificial feeding. While obvious pain and suffering is to be relieved, no attempt is to be made to prolong your life.

Benefits of having a living will

Many people have strong feelings about the medical treatment they may or may not wish to receive, if they were to suffer from a terminal illness. If you do, a living will would allow you to clearly communicate these wishes to your family and doctors at a time when you are no longer able to do so personally.

A living will can also help to alleviate your family’s distress at having to make difficult decisions about your medical care. In effect, it takes the decision outwith your family’s hands.

How is a living will given effect?

Unlike in England and Wales and Northern Ireland, where a living will is binding on doctors, in Scotland it is only one of a number of considerations that a medical team will take into account.  However, provided that it was granted while you fully understood the implications of signing it, a living will is highly persuasive and should be given effect.

Your living will would only be used if you lost the ability to communicate your wishes. This may be due to mental incapacity or a physical condition that prevents you from communicating.

Who should be notified?

You should make people aware that you have put a living will in place.

  • Your GP should be advised.  A copy of the living will can be placed on your medical records for ease of future reference.
  • You should tell your immediate relatives. Your next of kin may be consulted about your medical treatment if you are unable to communicate what your wishes are. It is important that your family are made aware of these wishes.
  • If you have a welfare power of attorney, your welfare attorney/s must be advised as they will be consulted about your medical treatment if you were to lose capacity.

Preparing a living will

Living wills are an increasingly popular estate-planning tool. It is extremely important that the document is an accurate and clear reflection of your wishes for future medical treatment. If considering putting one in pace as part of your estate plan, you should talk to a qualified professional. The charity Compassion in Dying can also provide further information and support, as well as free forms (online or via post), which, if completed correctly, are legally binding.

Jaclyn Russell TEP is a Partner in the private client team at Stronachs LLP in Aberdeen, Scotland