Living Wills, also known as Advanced Decisions, have become a particularly topical issue in view of the Covid-19 pandemic. For instance, the Sunday Times recently reported that Google searches for ‘Living Wills’ have increased significantly. A Living Will can include provisions such as a directive not to be placed on a ventilator, which is relevant with the current pandemic.
What exactly is a ‘Living Will’?
A Living Will or Advanced Decision is a legal document setting out your medical decisions if you lacked capacity and were unable to communicate these wishes in the future. If you want to refuse life sustaining treatment, you need to put this in writing, sign and date it.
An Advanced Decision to refuse treatment is time and decision specific. At the time a specific decision needs to be made, mental capacity principles are followed to determine whether you lack capacity to make that specific decision. At this point the Advanced Decision is acted upon.
An Advanced Decision is legally binding, valid and applicable if it complies with the Mental Capacity Act.
What is Life Sustaining Treatment?
The doctors providing your health care would view life sustaining treatment as that which is necessary to keep you alive.
Examples of life sustaining treatment include: being given food or drink by tube if you cannot take it by mouth; kidney dialysis, organ transplant, chemotherapy or other cancer treatment using a machine to help you breathe, restarting your heart, using CPR (cardio pulmonary resuscitation).
It must be clear that the Advanced Decision is to apply to the specific treatment even if your life is at risk.
Does a Doctor always have to follow the Advanced Decision?
When the Advanced Decision document is correctly prepared, by a specialist solicitor, so that it complies with the requirements of the Mental Capacity Act, it is legally binding. Medical professionals must follow your wishes, regardless of whether they believe it is in your “best interest”; provided that they are aware of the Advanced Decision, it is valid, and it applies to your current situation.
Tell your family about your Advanced Decision
It is vital that the Advanced Decision is brought to the attention of the doctors who treat you and where they can find it. You need to let relatives or close friends know you have made an Advanced Decision and ask for a copy to be included in your GP and hospital records. We would also recommend that you carry a card, in your wallet or purse, stating that you have a Living Will and where it is stored.
If you have Coronavirus and must go into hospital, it would be useful to take with you an envelope containing a copy of your signed Advanced Decision. It might make it easier to get through hospital admission.
Reviewing your Advanced Decision
To ensure your current wishes are followed, it is imperative that your Advanced Decision is reviewed and updated so that it continues to reflect your views. It could be that you have made a Living Will in the past but what you said in it is no longer applicable. In fact, it could be dangerous not to review your Advanced Decision as the old Living Will could be out of date.
Your particular circumstances and state of health may influence how frequently you review your Advanced Decision. You need to give a copy of your reviewed document to everyone with an earlier copy and ask them to destroy the old one.
You can change an Advanced Decision at any time whilst you have mental capacity to do so. You can also cancel an Advanced Decision at any time whilst you have capacity to do so.
To make sure that your Advanced Decision is legally valid and legally binding, it is important that you speak to a specialist solicitor who has knowledge of this area and can ensure that the document is clearly and properly worded.
To make a new Advanced Decision or update a current one, speak to Monika Volsing on 0113 320 5000 or email mkv@winstonsolicitors.co.uk
