Wayne Fleming Will Writing Services


A Living Will, or more formally an Advanced (Medical) Decision, clearly communicates your decisions about your medical care at a time when you are unable to.

It informs your family, friends and health professionals your decisions regarding whether you choose to permit or refuse certain treatments in various circumstances.

Such decisions are never easy to make, but by doing so you can be safe in the knowledge that your wishes will be carried out.  It is essential that you are clear regarding your decisions.

Making a Living Will

Do not be under the misapprehension that this is just for older adults.  Unexpected end of life situations can unfortunately occur at any age, so it is important that all adults consider their own personal needs as to whether they complete one.

In order that the Living Will is valid, you must have mental capacity; this is the same requirement to draft a Will and complete a Lasting Power of Attorney.

As with the other two forms mentioned above, the Living Will made can be amended or withdrawn at any time, provided that you have the necessary mental capacity.

It is important to realise that a Living Will is different to a Health and Welfare Lasting Power of Attorney.  Although both are used during your lifetime, the former details your decisions regarding your care or refusal of certain treatments; whereas the latter details who you trust to make decisions on your behalf regarding your care, where it is to be provided and by whom.

There are instances where these two documents could conflict each other and so it is important that the advice is obtained beforehand.  You may wish to consider specifying in your Health and Welfare Lasting Power of Attorney that you wish your attorney to follow your Living Will.

Life-sustaining treatments

A Living Will directs your permission or refusal to certain treatments which can differ depending on the condition that you are in at the time.  It is important to consider each condition separately and independently of the others as your views could differ.

  • Terminal with no hope of recovery
  • Persistently unconscious with no hope of recovery
  • Severely and permanently mentally impaired

The conditions are as follows:

The treatments are in relation to life support by

  • use of ventilation
  • tube feeding
  • cardiopulmonary resuscitation (CPR)

For each condition, you will also need to consider if you want any intervening illness to be treated or not, along with the use of behaviour controlling and/or pain controlling drugs to be administered.

It is extremely important to realise that if you decide to refuse life-sustaining treatments, this could result in your death

How does a Living Will help?

The most important fact is that the Living Will is only be used at a point when you are unable to make decisions about your treatment or you no longer have mental capacity.

As a result of having a Living Will, you will receive the medical care that you have chosen and more importantly relieve your family, friends and health professionals of the burden of making such decisions during moments of crisis or grief.

Any confusion or disagreement about the choices you would want these people to make on your behalf will be reduced by the existence of a Living Will.

Is a Living Will legally binding?

A Living Will is legally binding if it:

  • complies with the Mental Capacity Act
  • is valid
  • applies to the situation

Provided that your Living Will is legally binding, then it will take precedence over decisions made in your best interest by others.

Living Wills are considered to be valid provided the following conditions have been met:

  • you are aged 18 or older
  • you have mental capacity to make, understand and communicate your decisions
  • you clearly state the treatments that you are refusing and under what circumstances
  • it is signed by you and atleast one witness
  • the decisions made were of  your own accord and without any influence from others

In addition, subsequent to the completion of the Living Will, you should not say or do anything that would contradict the decisions made as this could invalidate your Living Will.  Simply saying that you have changed your mind could possibly invalidate the Living Will.

Who should see it?

It is important that you advise the appropriate people as to the existence, and location, of your Living Will as it will be needed at a point when you might not be able to advise them.

It is recommended your immediate family and carers be able to easily locate the Living Will in case emergency treatment is required.  You may wish to consider having copies of the Living Will in a safe place at your home, as well as with family, doctors and carers.

Please note that the information referred to above is correct at the time that this article was published.  If you wish to check for any subsequent changes; please call our office.

Please visit our Wills & Testaments page for further information.

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