Are living wills legally binding?

Public awareness around the importance of planning for future medical treatment is growing, and a living will should be considered as part of a wider estate planning strategy.

A living will is distinctly different from a traditional will, which determines how your assets are distributed after death. A living will – also known as an advance decision – is there to outline your wishes for medical care during your lifetime, particularly if you are incapacitated.

It allows you to make your own decisions in advance, including the refusal of specific medical treatments.

This can include:

• Life sustaining treatments, e.g. resuscitation and ventilation
• Limiting the use of certain medications
• Declining surgery or other interventions in specific circumstances

This is different from a Lasting Power of Attorney for Health and Welfare, where you appoint someone to make decisions for you. A living will allows you to make your own decisions in advance.

A living will is a legally binding document, provided it is validly executed. Your doctors will be legally bound to follow it – even if that results in your death.

It is important to ensure that you receive proper advice before drawing up such a document to ensure that it is legally valid.

It is technically possible to make an oral living will, but doing so comes with risks. There is always the danger that it would not be followed due to a lack of evidence that it was validly made. And an oral living will cannot used to refuse life-sustaining treatment.

There are some limitations to a living will. You cannot request treatment; it is used for refusal only. It is also difficult to provide for every potential medical scenario. Changes in circumstances or advances in medical treatment may affect your preferences.

It is strongly advised that you review the advance decision regularly with your legal advisor and healthcare providers.

Another option is to create a Lasting Power of Attorney for Health & Welfare. Introduced in 2007, these are being used increasingly. You would appoint one or more attorneys to make decisions about your medical treatment – including life sustaining treatment – should you lack the capacity to do so. While you are putting the decisions into a trusted person’s hands, it maintains some level of flexibility as your attorneys can use their discretion based on your wishes and the medical advice received. They would make that decision as though they are you.

It is possible to benefit from an advance decision as well as a Lasting Power of Attorney at the same time, though care should be taken by the drafter to ensure that one does not override the other.

You should discuss your living will, and Lasting Powers of Attorney, in depth with a legal professional to ensure that your wishes are carried out properly.

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*This article is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.