A Living Will

What is a living will and how is it useful?

A living will is not a will which we understand in the normal sense, but an ‘advance statement’ or ‘directive’ – instructions about stopping life-prolonging treatment in the future if a person loses the ability to express her or his wishes. No law has been passed to make an advance statement legally valid, but the British Medical Association (BMA) says that that where ‘incompetent or unconscious patients have made a formal and specific statement applicable to the circumstances, doctors should regard it as potentially legally binding’.  

The legal view is that an advance statement is a refusal to have treatment, made in advance, and that in common law your wishes should be taken into account provided certain conditions are met. They are:

  1. you must be eighteen or over when you decide and must not have been influenced by anyone else and,

  2. you should be ‘of sound mind’ and understand the consequences of refusing treatment.

Your living will statement could include medication you would be happy to have, and in what conditions, medication you would want, no matter how unwell you are, medication you would prefer not to have, and in what situations and, someone you would like to be check with about your medication at the time a decision needs to be made.

Making a Living Will

If you wish to make a living will, the first step is to discuss your wishes with your GP who should help you to draft your statement. The BMA recommends the ‘model’ statements developed by the HIV/AIDS charity, the Terrence Higgins Trust – even for people who do not suffer form HIV/AIDS.

The second step is to sign the statement and get it witnessed by two people who will not be involved in caring for you and will not benefit from your death. The last step is to give copies of the signed and witnessed living will to you next of kin that is, to a person who can take decisions about medical care for you, and to your doctor, to keep with your medical records. Keep the original with your will, or where it is likely to be found if you are ill.

Further, consider reviewing your living will regularly to make sure you are content with it. You can call off or modify the living will if you are able to think judiciously. Clearly explicate what you want to happen. Keep things in writing and tear down old versions. You can get help from solicitors that specialise in mental health.  

Examples

  • Denied Chance of Resuscitation

You are eighty-five and due to have a minor operation. You have chronic health problems and you worry that if something goes wrong surgeons may not resuscitate you. Please rest assured because a patient who wants to be resuscitated should never be denied it. But it can be difficult for doctors to decide, especially without long-term knowledge of the person’s beliefs, whether a patent would wish to be resuscitated.  

Recent NHS reforms have ensured that resuscitation will be discussed when patients are admitted to hospital. Your wishes are likely to be followed if you write a ‘living will’ and tell those who care for you.

  • Turning off a life-support System

Your sister was attacked and has been in a coma ever since. She is not expected to recover. You know she would not want to exist like this, but the hospital doctor refuse to turn off her life support, although you and your parents have asked. You probably will not be able to do anything to stop them keeping her in this situation.  

If your sister had made a ‘living will’ doctors would not continue to treat her. It does not matter if this wish was explained formally in writing or verbally, but if a person’s intentions are not written down, it is harder to prove them.  

No one else, not even the next of kin, has a right to make treatment decisions for an adult. So if your sister is incapable of consenting to treatment, including life support, her doctors must treat her according to their view of her best interests. Doctors usually consult relatives about continuing life support, but you have no power to force them to or not to do anything. 

He best you could do is to ask your sister’s friends and other relatives whether she discussed her wishes in such a situation, and search for any written statement she may have made. Ask her GP and her solicitor, and check her will. Offer any evidence you find to the hospital consultant in charge. Talk to hospital doctors and find out whether they think there is any chance, however slim, that your sister might recover. They may be waiting before making a decision.  

If the responses are unsatisfactory, contact your local Patient Advisory Liaison Service (PALS) or, if a PALS has not yet been set up in your area, your Community Health Council/ Patient Forum.  

  • Organ Donor

You carry an organ donor card. However, an organ donor card only indicates you wish to donate your organ for transplant into living people. You cannot use to donate them for medical research. Although you have the right to decide to be an organ donor, doctors usually ask a donor’s relatives for consent, and they would be unlikely to accept your organs if your family objected. You could record your wishes in a ‘living will’ and notify your GP. Make your wishes clear to your family now, and tell your friends as well.  

It is also important to tell your relatives if you do not want parts of your body donated to others or used for research after your death. Unless you have stated this, your relatives can allow your organ to be donated.