22nd Nov 2016
Wills
By Ashley Shepherd
Most of us, once into adulthood, take a degree of control over our own lives.
Whilst we may share elements of that as we age with our partners, children, wider family or even friends and colleagues, we all like to think that we have a substantial degree of influence over what happens to us, when and how.
Yet serious or terminal illness can change that.
If you’re unable to communicate and/or make decisions for yourself, then others, often medical professionals, will be forced to do so for you. In the absence of guidance from you, those professionals will need to base their decisions exclusively on the law.
They may turn to your spouse or closest family for help but if your loved ones have received no guidance from you either, then disputes and traumas can arise even within the closest family circles.
Many of these risks can be avoided by the use of what’s called a ‘living will’.
The ‘living will’
A living will is, unlike a normal will, a private document which does not become part of the public domain.
It is though, an important legal instrument which may have a very significant impact on you and your family should you become seriously or terminally ill and be incapable of making decisions or communicating them.
It essentially states your requirements for how your care is to be provided, which treatments you would or would not like to receive, and how any end of life care and treatment should be applied.
Living wills typically break down into two forms of request or directive to medical professionals:
an advance statement. This indicates what sorts of treatments you may wish to avoid, where your care is provided and so on. It can state your religious preferences and for example, whether or not you wish to be bathed if you’re incapacitated and by staff of which gender
an advance decision. That states, amongst other things, the types of life-preserving treatments you’d like to refuse if you’d prefer to be allowed to die peacefully.
Differences between the two
An advance decision is a legally-binding document. It essentially requires medical staff to comply with your wishes.
By contrast, an advance statement is an expression of preference. It is not legally binding and while health care professionals are required to take notice of it, they are not legally obliged to adhere to it.
Do please note, this is discussing England and Wales. The legal positions and processes in Scotland and Northern Ireland are different.
Making a living will
This is highly advisable if you wish to have a significant degree of control over what might happen to you should you need major medical or end-of-life care.
The process is not, in principle, complex. You express your wishes and have them witnessed via due legal process. Your living will is then lodged with your doctor and perhaps your legal adviser.
In practice though, there are complexities here that mean you might benefit from help in preparing this very important document. By way of illustrating some of them:
- you cannot include instructions in an advance decision that would require medical staff to break the law or to act against their medical ethics
- in some situations, your living will may need to make sense in terms of any trusts you might have set up if legal confusion and contradiction is to be avoided
- it may need to closely link to any Lasting Power of Attorney you have in place which appoints someone to take care of your health treatment issues. Once again, contradiction and subsequent dispute might otherwise arise.
Good legal advice is often beneficial in this area. At Over50sChoices, we have a dedicated will writing service - simply call 0844 880 2087 to speak to our friendly team of experts. Alternatively, for more information go to the section on "living Wills" in our Wills & Probate