What is a living will (advance decision) and how is it different from a will or lasting power of attorney?
A living will, also known as an advance decision, is a legal document that allows you to express your wishes about medical treatment in the future if you are unable to make decisions for yourself. It can be used to refuse or accept specific medical treatments, or to appoint a healthcare proxy to make decisions on your behalf if you are unable to do so yourself.
A living will is not technically a will. A will is a legal document that specifies how you want your property distributed after you pass away, whereas a living will is a legal document that specifies your wishes about medical treatment while you are still alive.
In England and Wales, a living will is legally binding if it meets certain criteria, known as valid and applicable.
For a living will to be valid, it needs to:
Be written by an adult with full mental capacity.
Include a sentence which says your decisions are to apply, even if your life is at risk.
Clearly explain the treatments to be refused.
Clearly explains the situations your refusal should apply in.
Be signed and witnessed by 1 person.
Not be written under pressure from anyone.
Not be contradicted by a prior decision to receive treatment.
For a living will to be applicable, it needs to:
Only be used when you personally lack mental capacity to make the decision in question.
Apply to the situation you are in.
Apply to the treatment(s) offered.
Not be any reason to believe that you have changed your mind since making it.
If you have a valid advance decision, your wishes must be followed by your doctors and other healthcare professionals, unless there are exceptional circumstances.
A living will is also different from a lasting power of attorney (LPA). A living will specifies your wishes about medical treatment if you are unable to make decisions for yourself in the future, while an LPA appoints someone to make decisions on your behalf about your finances, property, and healthcare if you are unable to do so yourself.
If you have both a living will and a lasting power of attorney (LPA) in England and Wales, the most recently signed document will take precedence, assuming your living will is valid and your LPA is registered with the Office of the Public Guardian.
It is generally not recommended to write a living will if you already have a LPA for health and welfare. Instead, it is better to ensure that whoever is nominated as your attorney is familiar with your wishes about medical treatment.
