Should I make a Living Will?

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A Living Will allows people to state their wishes for end-of-life medical care, in case they become unable to communicate their decisions.

At any time in life, an unfortunate circumstance can occur where you lose the ability to make or communicate your decisions, as a result of an accident or perhaps mental illnesses that commonly come with age. Given that no one can predict the future, it is worth considering a Living Will.

A Living Will is a formal document in which you express what kind of medical treatment you wish, or do not wish, to receive in the event that you are unable to communicate your wishes and decisions.

To make a Living Will, there are several considerations that need to be taken into account, and our expert solicitors can guide and support you throughout the legal process.

What is a Living Will?

Also known as an Advance Decision, a Living Will is a legal document that expresses your wishes to refuse medical treatment in the future. If you become unable to make or communicate your decisions independently, a Living Will would be relevant. This document allows you to refuse treatment, even if this means that you could die and is legally binding so that those caring for you must follow your instructions.

What to consider when making a Living Will?

Before deciding if you should make a Living Will, our solicitors recommend discussing your medical history, and the risks and benefits of refusing certain treatments with a healthcare professional. You should also talk to your family and friends, ensuring that they understand your requests.

If you have been diagnosed with a mental illness, such as dementia or Alzheimer’s, a Living Will can make you feel more at ease about your future. In cases such as these, a Living Will gives your loved ones and health professionals the opportunity to truly understand what you want when it comes to any potential treatments down the line.

How do you make a Living Will?

To make a Living Will, you must be over 18 years old and have the mental capacity to understand the decisions you are making and the effects of the legal document. It is an imperative step that you talk to your doctor to help comprehend the implications of refusing medical treatment and get the support you need to make your Living Will with confidence.

For a Living Will to be legally binding, you’ll need to:

  • Write it down
  • Sign it
  • Ask someone to witness your signature
  • Be over 18
  • Have the mental capacity
  • Give clear instructions regarding which treatments you want to refuse
  • Explain, in detail, the circumstances in which you want to refuse the treatment
  • Make the decisions yourself, without influence or coercion from anyone else
  • Include the statement ‘even if life is at risk as a result’

Our experienced solicitors can assist you with creating your Living Will, ensuring that your instructions are transparent and the document is legally binding and error-free. Once you’ve completed the document, you should give a copy to your loved ones and those who are involved in taking care of you. Your GP and the medical team also need to be updated in advance as to what your instructions encompass – allowing them to include your Living Will in your medical notes. This document must be reviewed regularly and can be changed at any time. If you do make any alterations, these changes need to be recorded as well as dated, signed and witnessed.

What is the difference between a Living Will and a Last Will of Testament?

A Living Will and a Last Will of Testament are two entirely different documents that serve completely different purposes. Both of these legal documents outline your wishes for when you are not able to communicate, but just because you have one document does not mean that you should not have the other.

A Last Will of Testament can only have a legal impact after you have died, and a Living Will takes effect when you are still alive. A Living Will normally goes into effect if you have become incapacitated, i.e. you fall into a coma or a vegetative state as a result of an accident or mental illness.

What is an Advance Statement?

You should not confuse an Advance Decision with an Advance Statement, as an Advance Statement of your wishes lays out your preferences, beliefs and values but is not legally binding. As a result of this, your medical team can go against your wishes if they do not agree and make a different decision.

This statement can feature anything that you deem as important to you with regards to your future treatment and wellbeing.

This document can cover:

  • Where you would like to be cared for e.g. at home, a hospice or a nursing home
  • How you want your religious or spiritual beliefs to be reflected in your care
  • You dietary requirements
  • Who you want to be consulted about your care

You need to give a copy of your Advance Statement to anyone who is involved in your care, as well as your loved ones, your doctor and the medical team.

A Lasting Power of Attorney (LPA) and a Living Will

An LPA is a legal document that allows you to appoint one or more people to help you make decisions on your behalf in the event that you can’t do so as a result of old age, an illness or an accident.

There are two types of LPA:

  • Property and Financial Affairs LPA, which allows your attorney to make decisions regarding your money and property.
  • Health and Welfare LPA, which gives your attorney the power to make decisions about your daily care and medical care.

A Health and Welfare LPA differs from a Living Will as it only focuses on who you would like to make decisions on your behalf when it comes to your medical care, while a Living Will is a declaration of your refusal to specific medical treatments. However, it is also possible that your LPA document includes guidance notes and conditions for your attorneys regarding your treatment.

If a person makes a Living Will, but afterwards makes an LPA, the LPA will take priority when it comes to making decisions. When a valid and applicable Living Will is made after an LPA, the Living Will takes priority. You can have both documents in place, but it is crucial that there is no conflict between the wishes stated in the two documents.

Our elderly care solicitors can help you make a Living Will

At Romain Coleman, our dedicated elderly care solicitors seek to assist you with your will writing requirements. With years of experience in all areas of will writing, particularly for clients who have been diagnosed with a mental illness, you can trust us to ensure that your legal documents clearly convey your wishes.

To find out more about our will writing service, contact our experienced team of elderly care solicitors on 0208 520 3322 or via our Contact Form.

This article was updated on 24/07/19

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This post is not legal advice and should not replace professional advice tailored to your specific circumstances. It is intended to provide information of general interest about current legal issues.

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