Living Wills / Advance Decisions
We cannot control the future but we can plan for it. Consenting to or refusing medical treatment is an essential human right to which we are all entitled. But what happens if you cannot refuse medical treatment when needed? For example, because you have had a brain injury, you are unconscious, or you have an illness such as dementia that makes it hard for you to make your own decisions.
A Living Will (also known as an Advance Decision) can tell medical professionals and care providers what your wishes are in case you cannot tell them yourself at some point in the future. This can include decisions about life-sustaining treatment.
Your Living Will is an important document that requires a great deal of thought and careful legal drafting. At Atkins Hope, our lifetime planning solicitors have a wealth of experience helping individuals think about the future. Making a Living Will now will ensure your wishes are respected and could save your loved ones from having to make difficult decisions on your behalf.
We can talk you through all your options, including:
- Types of treatment and the circumstances in which you do not want to receive it
- Whether you want life-sustaining treatment to be withheld
- Whether to include a Do Not Resuscitate for certain circumstances (sometimes referred to as a Do Not Attempt Cardiopulmonary Resuscitation decision or DNACPR decision)
We approach all lifetime planning matters sensitively and with an open mind so you can trust that the result will be a clear legal document that precisely reflects your thoughts and wishes. We also provide a wide range of other lifetime planning services, including Wills, trusts and long term care planning.
What is a Living Will (Advance Decision)?
A Living Will, Advance Decision, or Advance Directive is a legally binding document that gives health professionals instructions about what care and medical treatment you do not want in case you lack the capacity to tell them yourself when the need arises.
The lack of mental capacity need not be permanent, so the Living Will will only be used if you lack capacity at the time the health professionals need you to provide consent. The professionals will do a mental capacity assessment to establish whether you are able to make your own decision.
A person can lose capacity for many reasons, such as:
- An illness such as dementia
- A condition such as a stroke
- A brain injury that causes long-term issues with capacity
- A brain injury that causes short-term issues with capacity, for example, an accident that renders someone unconscious
As well as a Living Will, you may want to make an Advance Care Plan (also known as a Statement of Preferences) that sets out your wishes about things like:
- Where you want to be cared for and (if you are terminally ill or nearing the end of your life) where you would like to die
- Your religious beliefs and their incorporation into your care
- Your dietary needs
Advance Care Plans are not legally binding but your health care team is highly likely to do what they can to abide by your wishes.
What is the purpose of a Living Will?
The purpose of a Living Will is to ensure your wishes are fully respected no matter what happens.
It can also save your loved ones from having to make impossible decisions on your behalf. For example, if you need life sustaining treatment but did not leave a Living Will setting out your wishes, your family may find it extremely difficult to refuse the treatment, even if that is what you would actually want.
How is mental capacity assessed?
It will usually be a healthcare professional who assesses whether or not you have the mental capacity to make a particular decision. When carrying out their assessment, the professional will consider whether you can:
- Understand information about the decision
- Remember that information and use it to make the decision
- Process and weigh up the information sufficiently
- Communicate your decision, for example, by talking, using sign language or squeezing someone’s hand
The capacity assessment will only apply to a particular decision at the particular time. For example, if you need emergency medical treatment but you are unconscious, your health care professionals may need to refer to your Living Will before treating you. However, once you recover, you may be able to make your own decisions again.
What should I think about when making a Living Will?
You should think very carefully about what kinds of treatment you would like to refuse and in what circumstances. You can always change your mind and amend your Living Will later on.
Matters you should think about include:
You can use your Living Will to refuse treatment that could keep you alive, such as:
- Ventilation to help you breathe
- CPR (cardiopulmonary resuscitation)
- Antibiotics to fight infection
It is important to discuss various life-sustaining treatments with your health professionals to understand what might happen if you refuse the treatments so you can make a full informed decision.
Do Not Attempt CPR decisions
No one has the mental capacity to refuse CPR at the point they need it. However, you can refuse CPR in advance. You should always tell your family and friends about your decision so it does not come as a shock if it is needed.
What can’t you include in a Living Will?
You cannot ask health professionals to end your life as this is illegal. However, you can specify when you want life-sustaining treatment withdrawn or withheld.
How do you make a Living Will?
We will ensure that your Living Will is clear and unambiguous so that there can be no confusion about your wishes if the time comes. We will also set your wishes out in a written document so it can be provided to whomever needs it.
Your Living Will should be signed and dated. If you are refusing life-sustaining treatment, the document must be witnessed.
Once your Living Will has been created, you should provide a copy to your GP and ask them to record it in your Summary Care Record. This means that in an emergency, other health professionals will quickly be able to access it. You should also provide a copy to your family, friends, your care team, and any other health professionals you see regularly.