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Living Wills

What is a Living Will?

A Living Will, which is commonly referred to as an Advanced Decision to Refuse Treatment (or simply, Advanced Decision) is a detailed list of medical treatments you do not wish to be prescribed, should you ever lose the ability to communicate or make decisions for yourself in the future.

If you live in Scotland, you may refer to this record as an Advance Directive.

Your Living Will only comes into effect when it has been confirmed by medical professionals that you no longer have the mental capacity to make your own decisions.

Is my Living Will legally binding?

As long as the document meets certain requirements and is deemed as ‘valid’ and ‘applicable’, your Living Will is legally binding in England and Wales and must be adhered to by healthcare and medical professionals.

If an event occurs where a healthcare professional does not comply with your Living Will, they can be taken to court.

How to ensure your Living Will is valid

At the time of signing the Living Will:

  • You must be 18 or older
  • You must have the mental capacity to make your own decisions
  • If you wish to refuse all life-sustaining treatment then this must be clearly stated
  • Your signature must be witnessed

Age and Capacity

You must be at least 18 years of age and you must have capacity to make the decisions which are included in your Living Will and have complete understanding of the consequences that may happen due the refusal of medical treatment.

The refusal of life-sustaining treatment

This is important should you wish to include it within your Living Will, as it needs to be in writing that you have made the decision to refuse any life-sustaining treatment. The statement is confirmation that you fully understand the consequences.

Signed and Witnessed

As with all legally binding documents, this also needs to be signed by yourself and witnessed by someone else. If you are unable to sign the document, you can allow for someone to sign on your behalf; however this needs to be someone other than your first witness.

How to ensure your Living Will is applicable

Certain requirements still need to be met in order for your Living Will to be ‘applicable’. For example, if you can still make decisions on the medical treatment you receive, your Living Will, will not come into play as you do not meet the requirement of a lack of capacity.

The Living Will shall only apply if:

  • You no longer have capacity
  • The specific situations in the Living Will are met
  • Nothing has changed in your circumstances since the signing of the Living Will, which could lead to the doctor treating you considering that it is no longer valid

Once all the above requirements have been met then your Living Will shall be applicable.

Reviewing your Living Will regularly to ensure it is still correct

You should regularly review your Living Will as certain circumstances in your life may have changed since you first made your Living Will, which could impact certain conditions of the document and result in the doctor not being able to comply with your wishes.

For example, you may become pregnant or you have a change in beliefs which could affect the compliance of the document. For these reasons, it is incredibly important to review your Living Will on a regular basis to ensure you are still happy with the conditions and statements included.

If you already have a Living Will but it was made before October 2007, a review will definitely be necessary, as this is when the Mental Capacity Act came into force, which ensured Living Wills were legally binding in England and Wales.

Items that can and cannot be covered in a Living Will

Items that can be covered in a Living Will include the refusal of:

  • Cardiopulmonary resuscitation (CPR) in cases where your heart stops.
  • Antibiotics designs for life-threatening infections.
  • Assistance for breathing such as being put on a ventilator.
  • Foods or fluids via a drip or tube through the nose or directly to the stomach.

Items that cannot be covered in your Living Will include requesting:

  • Anything illegal, such as asking for someone to assist with your death
  • The refusal of basic care which includes food and water through the mouth and the refusal of clean and comfortable care by healthcare professionals.
  • Allowing for someone else to choose which treatment you receive on your behalf. This cannot be done through a Living Will. If you would prefer someone to make the decisions for you, this can be achieved through Lasting Powers of Attorney.
  • Treatments that you do not need. Any request you make for a treatment will be reviewed by medical professionals who will determine whether the treatment is most appropriate for your condition.

How do I make a Living Will?

Living Wills are fairly simple to create and do not require technical language to be deemed valid and applicable. Here at K J Smith Solicitors we can assist you in the creation of a Living Will to ensure everything you wish is included.

We will also give you further advice on the things you cannot include as part of a Living Will, so you can have full confidence it will be accepted and made legally binding.

Certain inclusions should be within your Living Will that explain to a healthcare professional when you want your Living Will to be applied, this could be after a stroke or if you develop dementia. We will help to ensure these criteria are included to ensure a clear, concise Living Will.

Once you are happy with everything included in your Living Will, we will assist in providing you with copies which will need to be signed by your GP and anyone else who may be involved in your care.

How do you let people know about your Living Will

To ensure the correct professionals and carers know you have a Living Will in place, you can send copies of your Living Will to these people for their records.

You can also ask your GP to make a clear note within your Care Record that you have a Living Will, so that it is brought to the attention of any healthcare professional who may be caring for you at that time.

There is also the option of carrying a ‘Notice of Advance Decision’ card, which you keep on yourself at all times and you can even register with MedicAlert, who provide you with a piece of jewellery which helps to identify that you have certain medical information, in the event of an emergency.

'Adavanced Statement'

You may have heard the phrase “advance statement” in association with an advance decision or Living Will. An advance statement is not the same as a Living Will. An advance statement sets out a non-legally binding guide of your wishes, values and beliefs regarding your future care.

For example, it might set out:

  • Where you would like to be cared for
  • What food and drink you like or do not like
  • What you like to wear daytime and night time
  • Whether you prefer showers or baths
  • What type of music you like to listen to
  • What films, programmes, soaps you like to watch
  • Your religious, or other beliefs/values
  • Who you wish to be consulted about your care
  • Who you would like to visit you

As with a Living Will it is suggested that you consider your wishes with your healthcare professional, family and/or friends.

You can record these wishes in any form that suits you, but it is advisable to ensure you review this regularly, and that your healthcare professional, family and/or friends have a copy.

Unlike a Living Will, an advance statement is not legally binding. It is intended as a helpful guide to ensure your wishes and feelings are known when you are unable to communicate them yourself.

If you review your advance statement regularly it is a good idea to sign and date your statement so that everyone is aware of your latest wishes.

A team you can trust

We offer a free initial 15 minute telephone appointment to give you the opportunity to speak to us about our Living Will service, before deciding if you wish to proceed in instructing us to act on your behalf.

Please contact K J Smith Solicitors on 01491 630000 (Henley on Thames), 0118 418 1000 (Reading Head Office), 0118 418 1200 (Reading Central), 01256 584000 (Basingstoke), 01483 370100 (Guildford), 01494 629000 (Beaconsfield), 01344 513000 (Ascot), 01635 785 100 (Newbury), 01962 587900 (Winchester), 0204 599 7400 (Richmond) or email info@kjsmith.co.uk.

We also serve a wide range of other areas including Abingdon, Bracknell, Gerrards Cross, Maidenhead, Marlow, Oxford, Slough, Wokingham, Pangbourne, and High Wycombe.

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