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Living Wills – making your wishes clear

Looking ahead, however uncomfortable sometimes, is nearly always a good thing. A living will enables you to outline your wishes in case there comes a time when you lack capacity to make or communicate decisions yourself.

Deciding to write down how you want doctors to care for you, and what treatment you do and don't want if you become unable to tell them yourself in the future, is part of this and helps many people feel as if they can still be in control if they are ever in a position when they are unable to articulate their wishes.

It can also be reassuring and comforting for you, as well as your friends and family, to know that your wishes are clearly stated in black and white.

Rising numbers?

In America, more than 70 per cent of people have made a living will or advance directive as it is also known.

Although there are few figures for England and Wales (and the law is different in Scotland and Northern Ireland), it is thought only about two per cent of the public have made living wills here, although the charity Macmillan Cancer Support's online resource for making an advance directive was downloaded 12,000 times in just over a year indicating many are interested in looking at this option.

Advance statement or advance directive?

There are two ways to outline future medical care preferences - an advance statement or an advance directive.

An advance statement sets out your general views and wishes, how you would like to be cared for, what you do and don't like to eat and what your religious beliefs are for example.

But crucially it is not legally binding although doctors and nurses should take it into account when they are looking after you.

In contrast, an advance decision or living will in England and Wales is legally binding under the Mental Capacity Act 2005. Therefore, if you decide that you don't want to be resuscitated if your breathing stops, and your advance directive states this, then doctors must respect your wishes.

  • To make an advance directive you must be over 18 and with the mental capacity to make the decision;
  • You must say exactly what treatment you don't want and in what circumstances;
  • An advance directive does not have to be in writing unless you want to refuse life-saving treatment, in which case it must be signed and witnessed, and state clearly that you wish it to apply, even if your life is at risk;
  • You can change your mind and your directive at any time;
  • You should keep several copies including one in your medical notes;
  • You should review it regularly;
  • If you have, or make, a Health and Welfare Lasting Power of Attorney take care to take advice about how it affects your living will.

For help and advice about advance directives, contact Jenny Pierce at Wards Solicitors or pop into one of our local offices.

Also see our legal guide, Introduction to Living Wills