A recent media survey in the UK revealed that more than half of those interviewed had little or no notion of what a living will is, yet nearly everyone could say what a will is and how it functions. This confusion is perhaps understandable as the term ‘living will’ in itself seems to be a contradiction.
But what is a living will and how does it work? Well, the answer is simple. A living will is a document that makes clear the wishes of an individual in advance of a time when they do not have the mental capacity to do so themselves. These wishes generally relate to medical treatment, for example, whether the individual wishes to agree or refuse certain types of medical treatment. Additionally, the individual can put their views forward verbally – when talking to a healthcare professional, for example – but making a written statement provides such views in a much more unambiguous manner. Written statements have the added benefit that they can be viewed at any time.
However, general written statements – sometimes known as advance statements – are not necessarily legally binding, although healthcare professionals would have to take them into consideration in the case of the individual no longer having the mental capacity to decide for themselves, and they can be put forward as evidence of the wishes of the individual by family and friends.
The contents of the written statement will inevitably vary from individual to individual but there are some common inclusions. Factors often included in a living will generally regard what treatment, or treatments, the individual would prefer to have and what treatment, or treatments, the individual would prefer not to receive. It is also beneficial for the individual to include the circumstances in which they either do or do not want to receive such treatments.
Some individuals, for example, might not want to receive a certain treatment no matter how ill they are; whereas others may be happy to receive the same treatment once they reach a certain level of illness. Another useful consideration to record in a living will would be to name a particular person to be consulted by a healthcare professional if there is a decision that needs to be made regarding treatment that the individual is unable make.
Almost everyone can make a living will. If, however, an individual has been diagnosed with a mental illness, then they will need to be able to show that they fully understand the potential implications of the living will they wish to make. This generally indicates that the individual must be ‘competent’ enough to make the living will, but does not have a bearing on whether or not the individual can make other decisions in their life at the time they write the living will.
There is much more that a living will can and cannot do, and it is best to seek professional legal advice if you wish to make one. Professional legal advisors can explain all of the key elements of living wills, taking into account a range of factors eg the situation where new drugs become available as advances in medicine are made (meaning that an illness untreatable at the time a living will is made may be treatable by the time an individual falls ill) can be accounted for in a living will.
Ultimately, it is important that an individual make sure that their living will is entered into their medical records so it is still acted upon in case of emergency. In the case of a verbal living will, it is important that close friends and relatives are well aware of the wishes of the individual.
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