Should I make a Living Will?

With life expectancy ever-increasing and with 9.9 million new cases of dementia reported each year worldwide, people are becoming increasingly concerned about their long term health.  In turn many consider what treatment they would want to receive, and in particular refuse, if they became seriously ill and were incapable of communicating their wishes to their families and to medical professionals.

It is therefore unsurprising that many consider making a Living Will, also commonly known as an Advance Decision or an Advance Directive.  A Living Will is an umbrella term which covers several quite distinct types of advance planning around health and welfare matters: advance decisions to refuse life sustaining treatment, advance decisions to refuse other types of treatment, and advance statements setting out more generally your views and wishes in relation to your future care and wellbeing.

As a result, I was saddened last week to read about the late Brenda Grant from Nuneaton, who having lost her independence through dementia, and despite having made a Living Will, had been kept alive by doctors for almost two years According to Mrs Grant’s daughter, the hospital where her mother was being treated had been given the advance directive but it was hidden in the middle of a thick pile of medical notes, so was overlooked.

Planning ahead for your health and welfare

As solicitors specialising in elderly client matters, we are frequently asked to advise on the merits of Living Wills and to prepare these documents for our clients. The following are some of the key points that should be considered:

• Plan ahead – an Advance Decision is by its very name anticipatory, so don’t leave it too late.  It can only be made by an adult, who is capable of making decisions about their medical treatment and who has been properly informed of the implications and consequences of their decision.  It is possible for a person to make a purely verbal Advance Decision, for example to tell the doctor on admission to hospital that you do not wish to have a particular specified treatment. However, if an Advance Decision is intended to apply to life sustaining treatment then it must be in writing, must be signed by the maker in the presence of a witness who must also sign the document and, must include a clear, specific written statement that the Advance Decision is to apply to the specific treatment even if life is at risk.
• Can the doctors use the Advance Decision to end my life?  An Advance Decision cannot be used to give effect to an unlawful act, such as euthanasia or assisted suicide or any intervention with the express aim of ending life. An Advance Decision which contains a request for certain treatment, as opposed to a refusal of treatment, will not be enforceable.  Your doctor or a specialist solicitor would be able to advise further on this.
• Where should I keep my Advance Decision?  The sad case of Mrs Grant highlights that having made the document is not enough and there is no central register. We would advise storing your original Advance Decision in a safe place such as with your solicitor.  You should also provide your GP with a copy to keep on your medical records, and should discuss your wishes and the fact that you have made the Living Will with your family and/or carers.
• Should I also make a Health and Welfare Lasting Power of Attorney?  Since 2007, it has also been possible for an individual in England and Wales aged 18 or over to create a Lasting Power of Attorney (LPA) for health and welfare, appointing another individual (or individuals) known as an Attorney, aged 18 or over, to make health and welfare decisions on his or her behalf.  This document can cover life-sustaining treatment but it is more wide-ranging than an Advance Decision and puts the responsibility for such decisions on your attorneys.  If you make a Health and Welfare LPA, care should be taken when preparing the document to ensure it works alongside an existing Advance Decision, rather than unintentionally revoking it.

It is easy to put off making these significant, and often, emotional decisions at a time when it might seem unnecessary or remote. However this is the ideal time to consider what your wishes would be should it become necessary.

For further information about Advance Decisions and Lasting Powers of Attorney please contact a member of the Succession and Tax team.