This article explains what a living will is and how it could help you.
What is a living will?
A living will is in fact, not a will in the usual sense at all. By the word ‘will’, of course we really mean ‘our last request’. In this context, a living will is a drawn to specify what medical treatment you would like in specific circumstances before you die.
Though often disapproved of, a living will can be useful to assist those providing medical or other care to giving you the treatment you want even at a time when you are no longer able to communicate directly with them.
This is usually achieved in Australia by setting up a special (medical) Enduring Power of Attorney while you are still of sound mind and have capacity to do so. You can find a link at the end of this article. In the Living Will you are giving an important member of your family or a trusted friend the power to make decisions on your behalf when you can no longer make them for yourself, to dictate how your incapacitated body is to be dealt with, whether you are to receive treatment or just pain relief, whether the life support systems are to be left running or switched off when you are considered terminally ill, and so on. Even young people may need such a document, as incapacitation can be caused by accident or illness and not just old age.
Why make a living will?
The most common medical reason for making a living will is so that you can refuse life-prolonging medical treatment if you became seriously ill in the future and were incapable of making your own health care decisions. The document contains provision for details of your GP but it is not obligatory to discuss your Living Will in advance with him or her, although it may be helpful to do so.
Formalities
A Living Will must be signed whilst you are mentally competent.
There are no other formalities necessary for a living will. It is up to you to set out carefully what you want or do not want. It is equally important to specify the circumstances which apply, particularly if you are giving alternatives. You should also make clear that you understand the likely outcome or effect of your wishes.
The directive should be in writing, dated and signed and witnessed by at least one independent witness who will have nothing to gain from your death. It may also be useful if that person, or some other, can state that they know you understood the effect of your proposals. Avoid discussing deeply with family members who may benefit from your death because a court might take the view that they had unreasonably influenced your decision.
Refusal of specific treatment
Of course, you can set out exactly what medical treatment you wish to refuse - you may wish to refuse antibiotics, tube feeding or you may not want to be resuscitated.
Requesting life sustaining treatment
Alternatively you may want to have life sustaining treatment even if you have very little chance of recovery. Unlike a refusal of treatment, this type of request is not binding on your doctor. However if you want this option, by asking for it your doctor will know you want the chance to recover from your illness even if it is not very likely you will do so.
You will be able to tell your doctor what you want to happen to you even if you cannot communicate. You are in control.
What a statement might include
Treatment you would be happy to have, and in what circumstances;
Treatment you would want, no matter how ill you are;
Treatment you would prefer not to have, and in what circumstances;
Someone you would like to be consulted about your treatment at the time a decision needs to be made.
It can also include a specific refusal of treatment, which has a different legal status. If writing an advance statement, bear in mind that new drugs or treatments may be introduced in the future. So you could, for example, state that you would prefer not to receive certain current treatments but would allow for new treatments.
Include your name, address, date and signature in the advance statement. It’s also advisable to say you understand what you’re doing and are capable of making such decisions. And you may want to get the statement signed by a witness who can say that you had capacity at the time.
Living wills and mental capacity
You can still make a living will if you’re diagnosed with a mental illness, as long as you can show that you understand the implications of what you’re doing. You need to be competent to make the decision in question, not necessarily to make other decisions.
It’s best to put your wishes in writing and explain:
Why you’ve made your decision about how you do/don’t want to be treated;
What you understand about the treatment you're agreeing to or refusing;
Why you’re making these decisions now.
Who needs to know about a living will?
It’s important that your living will is entered into your medical notes so that in an emergency it is found and acted upon. Consider sending a copy to your doctor and to any hospital which is treating you and to your nearest relative/s. If your living will is verbal, make sure close relatives or friends are aware.
Now you know what the facts are, you might like to buy a document to help you get started.
Status of living wills
A living will is not a legally binding document in itself, but may be given legal recognition and status by mental health and other legislation. Under current legislation a living will would not be binding on persons nominated as decision makers or on medical practitioners or other parties involved in care and treatment. However, the documentation of express wishes may be crucial should a dispute about treatment come before a Guardianship Board, tribunal or court .A living will is also likely to be strongly persuasive to all those making decisions about mental health care. It has been argued that medical practitioners in particular are generally required to abide by living wills unless they conflict with other laws or professional responsibilities.
Can a living will be revoked or changed?
A living will could be revoked or changed at any time when the person who makes it has the capacity to do so.
If by chance you find some error of law or fact in any Net Lawman information page, do please tell us. We should also welcome your suggestions for new subjects for information pages. These notes:
Do not provide a complete or authoritative statement of the law;
Do not constitute legal advice by Net Lawman;
Do not create a contractual relationship;
Do not form part of any other advice, whether paid or free.
