Most people understand what a Will is and an increasing number of people now understand what a Power of Attorney is, particularly in the current climate of continuous lockdowns. Many however do not know that it is possible to also put in place a Living Will or Advance Medical Directive.

A living will is different to a Will or testamentary writing. A Will sets out what you want to happen to your estate after you die, whereas a living will is there to detail medical treatment options when you are alive but unconscious or in a terminal state and are unable to communicate your medical wishes. It is a simple document that records what your wishes are about end of life medical treatment. It can detail the medical procedures you want or don’t want regarding the prolonging of your life if you cannot communicate with the doctors. For example, you may feel strongly that you wouldn’t want to be artificially fed through a tube or be kept on life support. If you haven’t made a living will, then your doctor will make the decision as to what treatment you should receive.

Is it really necessary to make a living will?

Having a living will and keeping your loved ones informed of its existence can act as a source of comfort during a difficult time. It can help avoid disagreements about what your loved ones believe you would have wanted and avoid them interpreting your wishes in a way other than what you wanted. You can make a living will from the age of 16.

Is a living will legally binding?

It is your legal right to refuse any medical treatment if you have capacity. In Scotland if you lack capacity the healthcare professional must take into account the past and present wishes of the person. If you have a Living Will in place, this counts as evidence of your wishes and therefore should be taken into account when a healthcare decision is being made on your behalf.

A living will is legally binding in England and Wales. This means that living wills which meet the legal requirements must be adhered to. In Scotland however, a healthcare professional must only consider your wishes, but they are not legally bound to do so. If the issue was to go to court, it is likely that the Scottish courts would treat the living will as they would in England and Wales and expect your wishes to be followed.

What about assisted dying?

Whilst a Living Will can be used to refuse in advance specific treatments or procedures if you are suffering from an incurable illness, it cannot request particular treatment such as assisted suicide or euthanasia.

A recent report has stated that on average, one British person a week is travelling to Dignitas, the assisted dying organisation in Switzerland. It is expected that assisted dying could become legal in the UK in the next few years.

In the meantime, if you have strong views about end of life treatment, you should consider putting in place a Living Will. If this is something you would like more information on or to discuss please call us…

Once signed, it is important that you notify your GP, those who are close to you and anyone else in your care about your living Will and we will provide you with as many copies as necessary. It is possible to change your mind, amend or cancel your advance directive, assuming you still have capacity at any time.