No one likes to imagine worst-case scenarios, and focusing on them is certainly no way to live an enjoyable, fulfilling life. However, in the same way we purchase car insurance, home insurance, medical insurance, and life insurance, it is often necessary to put contingency plans in place to ensure you or your loved ones are cared for if something was to happen. 

Unfortunately – and fortunately – we live in a world in which our physical bodies can be repaired and maintained while our mental facilities cannot. Thinking about what would happen if we were to lose our ability to make decisions, but not pass on, is one of the most difficult things to consider. Until modern medicine catches up, we need put a safety net in place to keep us safe should we be unable to make decisions for ourselves. 

If this happens, a Living Will can secure your future so that your healthcare wishes can be communicated when you are no longer able to.

What is a Living Will?

“What is a Living Will?” is a common question, as it is not a will in the context of giving your possessions to your loved ones. A Living Will, also known as “an advance decision”, is a legally binding document that allows you to refuse medical treatment if you become unable to communicate your wishes in the future, such as a breakdown of mental capacity. The medical professionals or carers looking after you must respect your wishes, even if it could result in death. 

A Living Will can’t give another person the ability to make medical decisions on your behalf, if you would like this, you will need to create a Lasting Power of Attorney. (Which we can also help you do, should you decide that is the best route for you.) 

A Living Will can be a failsafe if you have particularly strong wishes about what should happen to you in the end stages of a terminal illness, either to ensure your beliefs are followed, or to ensure you don’t endure undue suffering. 

Why is a Living Will Important?

There are numerous reasons why a Living Will can become of vital importance. The main considerations are: 

• To take difficult decisions out of your loved ones hands: Having to make decisions on behalf of other people is a difficult task for anyone, especially when it could be a life or death situation. A Living Will allows you to make your wishes clear to your loved ones, to take difficult decisions away from them, and to medical professionals, to give them instructions on how you wish to be taken care of. It will ensure that they know which specific medical treatments you do not want to have, for whatever reason it may be, should the time arise.
• To ensure your beliefs are respected: You may have strong beliefs about what should happen to you if you are unable to make your own decisions, especially in a life or death decision. If you’re worried, a Living Will is a legally binding document doctors will have to follow, regardless of anyone else’s wishes. 
• To keep control in difficult times: If you face a difficult diagnosis, you don’t want to be worrying about what will happen to you should your doctors be right about your diagnosis. It often helps to put your wishes into a Living Will so you can focus on living life to the fullest or fighting your illness, without being distracted by your fears. 

What Should I Think About When Making a Living Will?

You should talk to a healthcare professional, such as your GP, about what to include in your Living Will. They will be able to advise you on any risks of refusing particular treatments, or any potential benefits, and they can help you to phrase the content of your Living Will in a way that healthcare professionals will best understand. They can also record your treatment decisions in your medical notes as an extra measure to ensure they cannot be missed. 

You should also talk to your family and friends about your advance decision making so that they will better understand your desires and will have more time to come to terms with your wishes. Try to understand that even if you have conflicting wishes, it will be better for them to know ahead of time, rather than have a surprise when times are tough. 

What is the Process of Getting a Living Will?

A Living Will can be as simple or as detailed as you need or want it to be. Although you don’t need legal help to make a Living Will, it can be of benefit to do so. They will advise you on what you should include, and how you should word it, you need to be certain that your advance decision will effectively express your wishes and will be understood by others. You might find it best to talk to talk to your GP first so you know what you should include regarding potential treatments.

You should then make copies of the document and give them to your GP (for your medical records), for your hospital team (if you already have one), a family member or close friend, and to your lasting power of attorney, if you have one.

Is a Living Will Legally Binding?

A Living Will is legally binding in England and Wales as long as it applies to the situation, complies with the Mental Capacity Act, and is valid.

In order to have validity, a Living Will needs to adhere to a number of rules:

• you must be 18 or over
• you must have the capacity to understand and communicate your advance decision at the time of creation
• you must specify exactly which treatments you want to refuse and the circumstances in which you want to refuse them
• it must be signed by you
• it must be signed by a witness if you want to refuse treatment that is life-sustaining
• your advance decision must be made by you, without pressure from another party
• you must not say or do anything that will contradict your advance decision

When your Living Will is legally binding, it will outweigh any decisions that are made ‘in your best interest’ by both your family and medical professionals.

What Cannot Be Included in a Living Will?

Although a Living Will provides a way for you to make your own decisions when you are no longer able, there are a few things that cannot be included in a Living Will:

• you cannot refuse care that will keep you comfortable, such as nursing, pain relief, or warmth
• you cannot refuse the offer of food or drink by mouth
• you cannot ask for illegal practices, such as euthanasia
• you cannot request specific treatment – it may be inappropriate or unnecessary
• you cannot refuse mental treatment if you are detained under the Mental Health Act

Can I Change or Cancel a Living Will?

Yes, as long as you still have the mental capacity to do so. It is a good idea to review your Living Will every two years, or if your circumstances change, especially in regard to your health. If you want to make changes to your Living Will you can make these at any time, you just need to be sure that all changes are signed and dated. If you want to cancel your Living Will entirely you simply need to destroy the original and any copies that were made.

Often, making these advance decisions helps to give you some of the control you feel has been taken away for you, and many find it an empowering document. If you’re looking for advice and guidance in putting any wills in place, or giving a trusted friend or family member Power of Attorney, we’re here to help. To find out more about how we can help, click here.