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A Living Will is a document by which a person provides instructions with regard to treatment while they are still alive but due to the nature of their illness, they may not be able to provide at the time. This is now referred to in the Mental Capacity Act 2005 (“the Act”) as an “Advanced Decision”.
Essentially it is a written instruction that a particular type of treatment is to be given or withheld and it will be valid provided it complies with certain requirements. A Living Will is no longer a commonly used. Instead, a Lasting Power of Attorney for Health and Welfare has taken its place.
A Living Will can be made by any adult who has capacity to do so.
Under the Act, a person is assumed to have capacity unless it is shown that he or she does not. For example, if a person is already the subject of an Order under the Court of Protection, it would be unlikely that he or she would be considered to have capacity. If the person is competent to make a Will, he or she will also be competent to make a Living Will.
Under the Act there are specific formalities which must be complied with:
a. The document must make it clear that the person wishes the Advanced Decision to apply to treatment even if life is at risk.
b. The document must be in writing and signed by the person or someone else in his or her presence and at his or her direction.
c. The signature must be witnessed and countersigned by the Witness.
A person can withdraw or alter a Living Will (Advanced Decision) at any time when he or she has the capacity to do so. This withdrawal (including a partial withdrawal) need not be in writing. However the alteration may have to be in writing if it still relates to life-sustaining treatment.
Under the Act a Lasting Power of Attorney does not prevent the Living Will from being regarded as valid and applicable unless the Lasting Power of Attorney confers authority on the Attorney (or if more than one Attorney, any of them) to give or refuse consent for treatment to which the Advanced Decision relates. If the person has delegated authority to make the decision to someone else that someone else can make the decision and this will therefore over-ride the Living Will.
In the event of any uncertainty about what the person intended the Court has power to make a Declaration as to whether a Living Will (Advanced Decision) exists, is valid or applies to any particular treatment which is intended. The effect of the Living Will (Advanced Decision) is that if a person acts in reliance on it reasonably believing it to be valid, that person is protected by it.
Finally, please note a Living Will cannot instruct a Medical Practitioner to take any steps to shorten life. It can only relate to ongoing treatment including withholding life-sustaining treatment.
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