What is a Living Will?

Living Wills are a form of advance directive which allow person with full possession of faculties to refuse medical treatment.

A Living Will enables persons to retain some control in circumstances where they are unable to make a decision.

Living Wills now have statutory protection under the Mental Capacity Act 2005 which was enacted on 7 April 2005. If you have made a Living Will prior to this date, it is important that you seek legal advice to ensure it complies with the 2005 legislation.

Formalities for making a Living Will

To make a Living Will, the maker must have mental capacity and be eighteen years of age or over. It is advisable that the maker seek medical advice. This will provide some evidence that you have made an informed decision and that you have discussed the various implications of making a Living Will with a medical practitioner. If it is possible, get the medical practitioner to witness the directive.

When do Living Wills apply?

The refusal of treatment must be ‘valid and applicable’. The Living Will ust state the treatments that the maker does not wish to receive and the circumstances to which it is applicable.

A Living Will is only applicable if the maker has lost capacity and is only applicable to the treatment specified in the Living Will. The Living Will is not applicable to life-sustaining treatment unless :

  • The decision is verified with a statement by the maker to the effect that it is to apply to that treatment even if life is at risk.
  • The statement is in writing.
  • The statement is signed by the maker or by another person in the maker’s presence and by the maker’s direction.
  • The maker signs the statement or acknowledges his signature in the presence of a witness.
  • The witness signs or acknowledges his signature in the presence of the maker

A Living Will can be withdrawn at any time.

What is the effect of a Living Will?

The effect of a Living Will is to put into effect the maker’s wishes as though he or she had capacity at the time the question of treatment arose.

There are certain circumstances in which a Living Will may not be valid.

For example, circumstances not anticipated by the maker have come into existence after the Living Will has been made, such as new medical procedures.

If you wish to make a Living Will it may be a good idea to seek advice from a solicitor who specialises in this area of law. Solicitors for the Elderly is a national organisation of solicitors whose primary area of expertise is advising older members of the population on legal issues. To access a list of members of Solicitors for the Elderly at their website, please click here.

Tom Morrish, Partner, is Regional Coordinator of Solicitors for the Elderly. For further information on Living Wills, please call our Elderly Client team on 033 3344 9606 or 033 3344 9616.