The ability to decide how and when an individual dies is under the spotlight as Scotland becomes the first UK nation to decide whether terminally ill individuals can with assistance end their lives. It is a highly emotive issue, with strong arguments made across all sides of the debate.
As yet there are no plans by the UK government to introduce legislation nationwide that would introduce or enable assisted dying despite increasingly louder calls.
Individuals in England and Wales can, however, determine their end-of-life care and the ability to withhold treatment through a ‘living will’, also known as an advanced decision. A living will often sit alongside a health and welfare lasting power of attorney providing the direction on future care when an individual loses the capacity to make those decisions for themselves.
They provide assurance that the wishes of an individual will be respected and comfort for carers when difficult decisions need to be taken.
What is a living will?
A living will is a legal document that sets out the wishes of an individual relating to end of life medical treatment. They are created when an individual has the mental capacity to make these vitally important decisions to cover the direction of medical treatment should that capacity be lost.
They can address issues such as life support and when to turn it off, pain management and other aspects of end-of-life care. A living will is neither the right to die nor the right to life but the right to make a choice.
In creating a living will, an individual must have the mental capacity to understand the decisions they are making. They can set out only what treatment can be refused and the circumstances where it applies. Understandably, they need to provide as much detail as possible, including a statement that the advanced direction made in the living will is only to be used when capacity to make decisions directly is lost. Importantly, a living will cannot request a procedure or action that is unlawful.
It is important that the existence of a living will is made known to your doctors and where it can be found.
End-of-life care is often a difficult discussion to have with loved ones and it is sensible to involve them when creating a living will.
A living will is a very different document from a health and welfare lasting power of attorney but they are often created at the same time. In fact, good practice dictates that a health and welfare lasting power of attorney should be prepared in advance of a living will.
Health and welfare lasting powers of attorney will address the daily requirements of an individual should they lose capacity to make those decisions directly. They will cover things such as when to move into a nursing home, day-to-day care arrangements, the clothes an individual might like to wear, the food they should eat and access to visitors.
Whilst health and welfare lasting powers of attorney can be used to give the Attorneys the power to make end of life decisions, they do not, however, set out the circumstances in which that power should or should not be used. A living will is therefore advisable even where a health and welfare Power has been executed, in order to provide written evidence of an individual’s wishes relating to end-of-life care.
The Attorneys appointed to deal with health and welfare affairs (often family members) can also be named in the living will to ensure that they are consulted and involved with end-of-life decisions.
Given the nature of living wills and health and welfare lasting powers of attorney, it is advisable to regularly review these documents and hold regular discussions with the appointed attorneys to ensure they are happy and capable of continuing to act in that role.
It is also important that specialist legal advice be taken when creating a living will and health and welfare lasting powers of attorney.
Contact our Private Client Solicitors
If you are in need of advice or assistance on any of the legal issues mentioned in this article, please contact Olivia Meekin, Partner or any member of our experienced Private Client team on 020 7631 4141 or email privateclient@bishopandsewell.co.uk
The above is accurate as at 24 May 2024. The information above may be subject to change.
The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis.
