What is a Living Will?
A Living Will is a document in which you write down your views about medical or healthcare treatment you may need in the future. It would be used if you are ever unable to express your wishes about medical treatment, perhaps because of some illness that has left you unconscious or unable to communicate. A Living Will is sometimes known as an “Advanced Medical Directive”.
A Living Will can cover any specific types of medical treatment you do or do not wish to receive in certain circumstances. Typically, it would set out that you do not wish to be kept alive by medical intervention if there is no prospect of you making a significant recovery from your illness. It could also, for example, set out your wishes on particular types of medication or specific medical treatment.
I already have a Will, will that do?
A Living Will is not a Will in the traditional sense as it is used during your lifetime, rather than on your death and it does not deal with any items of your property. Therefore, your Will should not be used to contain views about your medical treatment. Additionally, the Living Will will be shown to your family and doctor and you probably would not want them to also see what is written in your will.
I already have a Power of Attorney, will that do?
If you have granted a Welfare Power of Attorney, that document would authorise another person or people to make welfare decisions for you if you are ever incapable of making welfare decisions for yourself. When making such decisions for you, your welfare attorneys should take account of your wishes. However, your welfare attorneys may not know what your wishes are about particular aspects of your health and treatment or if you have told them your wishes a long time ago, they may have forgotten about them during what is probably a very emotional time for them. Therefore, even if you have Welfare Power of Attorney in place, a Living Will can still be useful to make it known what your wishes are about certain health matters.
Is a Living Will binding?
There is no legal authority in Scotland as to whether a Living Will is binding, as there is no legislation on this topic and the subject of Living Wills has not yet been tested in a court in Scotland. However, guidance from the British Medical Association and recent cases in the rest of the UK would suggest that Living Wills are becoming an accepted way of patients providing their views about medical treatment in advance.
The guidance from the British Medical Association provides that for a Living Will to be accepted by a doctor, it must have been made by an adult, at a time when you had mental capacity and that you understood the nature and effect it and the consequences of the medical treatment that you do or do not wish to receive. Additionally, the doctor viewing the Living Will should be satisfied that it still reflects your current wishes. It is therefore important to review Living Wills regularly and record that the wishes remain the same.
How do I make a Living Will?
If you wish to go ahead with a Living Will, a solicitor could help you draft the document and would discuss the particular views you wish to express in the Living Will. We then suggest that you take the draft Living Will with you to your GP and discuss it with them and have it recorded in your medical notes. The Living Will would be signed by you in the presence of your GP, or another independent witness.
While there is no way for us to guarantee that your views set out in your Living Will would be followed, it is a very useful way of letting doctors know what your wishes are. It can also take the strain from family members in making important medical decisions for you at, what is likely to be, a very emotional time for them.
If you have any questions about Living Wills, please do not hesitate to contact one our Personal Law Solicitors on 0131 202 7516 or info@gibsonkerr.co.uk.
Article by Lindsay Maclean, September 2018
