When planning for the future most people think about making a Will or setting up a trust fund, so their loved ones are provided for after they die. However, what many people fail to consider is, what might happen if they lose the ability to make important decisions for themselves while they are still alive.
At HPJV, we understand that nobody enjoys thinking about becoming unable to make decisions about their own medical care due to brain injury or illnesses such dementia. Nevertheless, if you do not record whether you want to refuse certain types of medical treatment in advance, your wishes could be ignored, and your loved ones asked to make distressing decisions on your behalf.
Our compassionate and approachable probate solicitors can help you plan for the future by making a Living Will which specifies your wishes regarding medical treatment in the unfortunate event that you lose your capacity to decide for yourself in the future.
What are Living Wills?
Although often referred to as a Living Will, this legal document is not to be confused with the document which we normally think of as a Will.
Living Wills, or Advance Decisions, are documents which specify your wishes about the medical treatment or care should you become incapable of communicating your wishes or refusing medical treatment in the future.
You may become mentally incapable of consenting to medical treatment if you cannot understand or retain information, come to an informed decision about your treatment, or you cannot communicate a decision. This may be due to a brain injury or illness.
If you require medical treatment but you are mentally incapacitated, your doctors or medical professionals can turn to your Living Will to inform their decisions about your care.
What’s the difference between a Living Will and an Advance Decision?
Advance Decision is another way to refer to Living Wills. Both are documents which set out your wishes to refuse medical treatment should you become mentally incapable of doing so at the time.
What are the advantages of making a Living Will or Advance Decision?
Medical professionals uphold the principle of patient autonomy. This means patients have a right to refuse medical treatment even if it will lead to their serious injury or death. However, if a patient cannot refuse treatment, medical professionals can make these important decisions on their behalf, including continuing life-sustaining treatment.
One advantage of Living Wills is they enable your rights to be respected. In particular, Living Wills are often used to state whether you want to refuse life-sustaining or end-of-life medical care.
Another advantage of Living Wills is they take a lot of stress and pressure off your loved ones, who may otherwise be asked to make decisions on your behalf. These decisions often result in painful family disputes and lengthy, expensive court action.
Are Living Wills legally binding?
As long as your Living Will fulfils certain formal requirements, it will be legally binding, and your doctors and other medical professionals should abide by your wishes.
The only exception is if something changes after you make your Living Will to suggest it no longer reflects your decisions.
How do you make a Living Will or Advance Decision?
If you are an adult, over 18 years old, and you have mental capacity, you can make a Living Will or Advance Decision.
To make a Living Will, you need to think about scenarios in which you would want to refuse medical treatment, for example, if you are living in pain and there is no possibility of recovery. There are also certain requirements you need to fulfil for your Living Will to be valid, including:
- It must be in writing
- It must state that it applies even if you could die or have your life shortened by refusing treatment
- It must be signed and witnessed
Our experienced Living Wills lawyers can guide you through the process of making a Living Will, including helping you think about the types of treatment you might want to refuse and drafting a watertight document so there can be no confusion about your wishes should it ever need to be used.
How will people know about your Living Will?
Once it becomes clear that you lack the mental capacity to consent to or refuse your own medical treatment, the medical professional treating you must take ‘practical and appropriate’ steps to determine whether you made a Living Will.
However, although Livings Wills are legally binding, there is no central register medical professionals can check to see if you’ve made one.
To ensure your Living Will is followed, you should provide copies to your GP, your close family and friends (anyone who is likely to be contacted in an emergency), and anyone else involved in your health care.
How do you tell your doctor about your Living Will or Advance Decision?
There are a couple of ways you can ask your doctor to ensure your Living Will is discoverable in the event it is needed, including:
- Keeping a copy with your medical records
- Adding a note that you have a Living Will to your Summary Care Record, an electronic record of important details about your health that can be accessed any time by any medical professional
When should you review and update your Living Will or Advance Decision?
If you are healthy, you should regularly review and update your Living Will to reflect any changes in your wishes. Even if your wishes do not change, if you lose your capacity and your Living Will was made a long time ago, medical professionals may feel doubtful of its validity
You should update your Living Will if:
- You haven’t updated it for at least two years
- Your health has changed
- You require new medical treatments for conditions diagnosed since you made your Living Will
- Your personal circumstances change, for example, you become pregnant
- You’ve created a Lasting Power of Attorney and you’re happy for your Attorney to make decisions on your behalf
- You’ve changed your mind about its contents
Our supportive probate solicitors can help you regularly review your Living Will and amend it to reflect your latest wishes if necessary.
What happens if there is a dispute about your Living Will?
Your family members may disagree with your decision to make a Living Will, particularly if you’ve decided to refuse lifesaving medical treatment in certain circumstances. However, your Living Will is legally binding, meaning it cannot be overridden simply because people disagree with it.
The only way a Living Will can be overridden is by a medical profession with serious doubts as to its validity or by an order of the Court of Protection.
If you’re concerned that someone may try to override your Living Will, we can provide expert advice to give you peace of mind.
Can someone else make decisions on my behalf?
If you decide a Living Will is not right for you and you have a loved one you would like to make decisions about your welfare and medical treatment in the event you lose your mental capacity, our team of probate solicitors can also help you make a Lasting Power of Attorney.
Why choose our probate lawyers to make your Living Will or Advance Decision?
At HPJV we can provide you with specialist advice and guidance on creating a Living Will and reviewing and amending it regularly. Our wealth of experience in this area means we can draft you an unambiguous document which clearly defines your wishes should it ever need to be used.
We offer a free 30-minute consultation to all clients, either by phone or at our offices in Newport, South Wales, to enable you to make an informed decision as to whether a Living Will or Advance Decision is right for you or for someone you care about.
If you or your loved one are unable to visit us in person due to disability or other reasons, we are also able to arrange home and hospital visits at no extra cost (subject to location).
We consistently work to provide clear, practical advice which is easy to understand and to achieve positive outcomes for our clients. We have been accredited by the Law Society in Lexcel for our dedicated approach to client care.
HPJV Solicitors is independently regulated by the Solicitors Regulation Authority (SRA).