Living Will (Advanced Decision)

A Living Will (also known as Advanced Directive in Scotland and Advance Decision in England) is a document which sets out the future medical wishes of an individual should they become terminally ill or require medical treatment at a time when they do not have the full mental capacity to make those relevant decisions.

The term ‘Living Will’ can be divided into two categories, Advanced Statement and an Advanced Decision.

Advanced Statement

An Advance Statement can include aspects such as:

– Who will take care of your pets when you are incapable.
– What you would like to happen in regards to your home and personal life.
– It can outline the extent of medical intervention the individual would like.

The document it self is to be considered by health care professionals, however unlike an Advance Directive (a form of a Advance Statement) it is not binding under the Mental Health Act 2005.

It is seen more to reflect individual aspirations, preferences and personal values and would be used more as guidance if you are unable to make a decision.

Advanced Decision

An Advanced Decision is a legally binding document in England, Wales and Scotland (not Northern Island yet) and must be respected by all medical professionals.

The document itself details the individuals right to refuse any form of treatment from blood transfusion to life sustaining treatments and resuscitation

Why Make a Living Will (Advanced Decision)

A Living Will is normally made as an addition to a Lasting Power of Attorney (Health and Welfare) and allows the individual to control any medical intervention whilst they are sound of mind. This then being adhered to instead of relying on close friends or family to make the hard decisions at the time.

However a Living Will does override the appointed Attorney in a Lasting Power of Attorney unless the said Attorney have been giving the power to act on your behalf in the Living Will also

An example of such a situation is below:

When Bill retired, he and his wife, Sylvia, decided it was time they took control of the future…

A living will allows people to leave instructions about possible medical treatment and intervention in case there comes a time when they are no longer able to make decisions for themselves. Prompted by the lingering and painful deaths of Sylvia’s mother and Bill’s father, Sylvia and Bill drew up their living wills in 1985, with the aid of the Voluntary Euthanasia Society. They then got on with enjoying life, until 3 years ago when Syliva had to carry out Bill’s wishes in accordance with the living will.

Bill contracted cancer. The operation was successful, and he started a course of chemotherapy. But whilst out in the street one day, Bill was knocked down and seriously brain damaged. Sylvia recalls, “The hospital didn’t expect him to survive the night, but he did, and the next night and the next night… they then realised that the brain stem was still active, which meant he could breathe and his heart was active, but his brain was dead. There was no consciousness at all.”

At this point, Sylvia asked for the existence of Bill’s living will to be put on his medical record. “The doctors did discuss it with me, but they did want to be sure of what they were doing. Everybody in the hospital was wonderful to us…”

Two months later, it was agreed between the family and medical staff that Bill’s request should be honoured. Two neurologists checked there was no brain activity, then the feeding tube and the tube administering fluid were withdrawn. Drugs for pain relief were continued. “They couldn’t have done this without a living will,” says Sylvia “there are cases where people have to go to court before they had permission to stop feeding. But since we had the living will which indicated very clearly what my husband wanted, and the hospital were prepared to do it. He lived for ten days, quietly, and with dignity and he died very easily, between one breath and the next as it were…”

The family were convinced that the right decision had been made, “He was such a dignified man; he would have hated to be in the condition he was – helpless, incapable, incontinent – it would have broken his heart. I was so, so sure this was what he would have wanted. We were altogether in being with him until his own wishes had been achieved. We were all able to say goodbye – properly – the way he would have liked us to.”*

*Case Study: (Source BBC)http://www.bbc.co.uk/radio4/hometruths/livingwill.shtm

What do I need to make a Living Will (Advanced Decision)

A Living Will is a legal document in the majority of the UK and it is advisable to have it drawn up by a solicitor.

The essential criteria of a valid Living Will is as follows:

  • the individual must be over 18 years
  • the individual must be of sound mind
  • the date when the living will was written should be stated clearly within the document
  • the document must be signed in front of two witnesses (ideally one of the witnesses should be a health care professional)
  • the witnesses must then sign the document stating the individual is of sound mind at the time of writing the Living Will

 The document itself should include:

–       Information of what you wish to happen in certain medical scenarios such as non-treatable illnesses (Chronic), Coma, Brain Damage, Vegetative state, serious illnesses.

–       Information on treatments you do not wish to use such as artificial feeding, blood transfusions, antibiotic treatments, resuscitation etc.

Due to the nature of medicine it is advised to update your Living Will often to take account of new medical treatments.

If you have just been diagnosed with a life threatening illness it is advisable to talk to your GP about medical treatments available and as long as you are deemed to be of ‘sound mind’ create a Living Will to reflect your wishes.

What happens if I don’t have a Living Will (Advanced Decision)

The Mental Capacity Act of 2005 became effective in 2007 in England and Wales, its main objective was to provide a framework to assist people aged 16years and over who did not have the full mental capacity to make certain decisions about what treatment they would like to pursue. The Act enables people to appoint a Lasting Power of Attorney (a person who is appointed to make decisions on behalf of the individual) or to make a Living Will, both of which will be respected by all health care professionals.

Where a person lacks the capacity to make decisions the Act will provide a framework to assist with issues relating to shelter, health and personal care. Principles of the Mental Capacity Act 2005 The Act is underpinned by five key principles:

  • A presumption of capacity – every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise;
  • The right for individuals to be supported to make their own decisions – people must be given all appropriate help before anyone concludes that they cannot make their own decisions;
  • That individuals must retain the right to make what might be seen as eccentric or unwise decisions;
  • Best interests – anything done for or on behalf of people without capacity must be in their best interests; and
  • Least restrictive intervention – anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedoms.

Can a health care professional act against the wishes stated in a Living Will (Advance Decision)?

Health Care professional can act against the wishes stated in the living will if;

  • there is evidence that the Living Will is out dated and other wishes have been stated by the individual
  • the health care professional is aware of any life changes such as a change in religion which may affect the original living will
  • the Living Will is unclear or inconsistent
  • the individual has been treated under the Mental Health Act
  • the request made in the document goes against the health carers professional judgement.

Can a Living Will (Advance Decision) be modified?

With medical science improving and evolving constantly it is advisable for Living Wills to be reviewed regularly. Any changes to the document should be stated clearly and re-signed. Ideally the amendments should form a new Living will and the expired document should be destroyed.

What wishes are not able to be fulfilled by a Living Will (Advance Decision)?

  • Requests to end a life in a Living Will ie; euthanasia will not be met.
  • It is not possible or reasonable to request a Health care Professional to act against their professional judgement.
  • You cannot refuse treatment if the person has capacity to give or refuse consent to it
  • You cannot refuse basic nursing care essential to keep a person comfortable, such as washing, bathing and mouth care
  • You cannot refuse the offer of food or drink by mouth
  • Refuse the use of measures solely designed to maintain comfort − for example, painkillers
  • Demand treatment that a healthcare team considers inappropriate
  • Refuse treatment for mental disorder if the person is or is liable to be detained under the Mental Health Act 1983

Does my GP have to sign my Living Will (Advance Decision)?

While it is not required, it is recommended that you do this for the following reasons:

– He can attest to your “capacity” at the time of producing this document.
– It will be stored with your GP, so he will have knowledge of the document and can pass it to the relevant people when requried.

Can my family overturn my Living Will (Advance Decision)?

They cannot overturn your Living Will unless

  • the living will is unclear or inconsistent.
  • there is evidence that the living will is out dated and other wishes have been stated by the individual.
  • you were unduly influenced by others to make the Living Will.
  • you made your advance decision at a time when you did not have the required mental capacity
  • you have appointed an Attorney in a Lasting Power of Attorney to act for you in the decision (example life sustaining treatment)

I have already written a Living Will (Advance Decision) Is this still valid under the new act?

As long as it adheres to the principles set out in the act it should still be valid. Namely:

  • the individual must be over 18 years
  • the individual must be of sound mind
  • the date when the Living Will was written should be stated clearly within the document
  • the document must be signed in front of two witnesses (ideally one of the witnesses should be a health care professional)
  • the witnesses must then sign the document stating the individual is of sound mind at the time of writing the Living Will

It is recommended however you review your Living Will every six months.