Living wills, also known as an Advance Decision, Advance Directive (in Scotland and Northern Ireland) or Advance Decision to Refuse Treatment, are made by you in your lifetime. They allow you to decide, in advance, how you want to be treated should you become terminally ill or lose the ability to be able to make these decisions for yourself.

However, whether living wills are legally binding can be called into question. If it meets certain criteria, it is legally binding but it can only be used if you lose the ability to communicate your wishes or make decisions about any treatment you may receive.

What are living wills?

A living will is a legal document that sets out your wishes in terms of medical care should you become terminally ill or lose the ability to communicate your wishes and make decisions on your medical care.

It is also known as an Advance Decision to Refuse Treatment (ADRT) in England and Wales or an Advance Directive in Scotland and Northern Ireland. It sets out the medical treatment you wish to receive in the future, which could be chemotherapy, being on a ventilator or other life-sustaining treatment like CPR. You may even decide that your wishes are to refuse all treatment if your illness is terminal or life-threatening.

In England, Wales and Northern Ireland, the medical profession is bound by living wills, i.e. they must adhere to its wishes no matter what they think. If they go against a patient’s wishes in a living will, they run the risk of being prosecuted. In Scotland, however, it is different in that whilst healthcare professionals must consider their patient’s wishes in an Advance Directive, they are not bound by law to adhere to them and can press ahead with the treatment if they think it is the right thing to do, i.e. administer CPR.

However, for it to be legally binding, the living will must meet a set of criteria, although this does vary depending on where you live in the UK.

What are the criteria to make living wills legally binding in England and Wales?

Legally binding living wills overrule any decision by healthcare and medical teams, as well as family and others that may want to make other decisions in your best interests. But for living wills to be legally binding, they must comply with the Mental Capacity Act 2005. This means that medical and healthcare professionals must follow your advance instructions and/or decisions if you do not have the communication or decision-making capacity to make decisions regarding your treatment and care for yourself.

Therefore, to comply with the Mental Capacity Act 2005 and for living wills to be considered legally binding in England and Wales, they will only be deemed valid if:

• You are over the age of 18 years at the time of making your living will and were capable of making, understanding and communicating your ‘advance decision’ at the time, without any pressure from anyone else.
• You clearly specified the treatments you want to refuse and in what circumstances this should be applied. Remember that your advance decision will only apply in the circumstances you have set out in your living will.
• Your living will must be signed by you and an independent witness if you wish to refuse life-sustaining treatment.
• There is no reason to believe you have changed your mind. For example, if you get married or become pregnant after you have written your living will, or new treatments have been developed that could provide a different outcome to your illness.

Advanced Directives in Scotland

In Scotland, the medical and healthcare profession is not bound by law to act on your Advanced Directive decisions as they would be in England and Wales. That said, in most cases, they will follow your wishes. They must, at all times, take your wishes into consideration, and your Advanced Directive will only be used if you do not have the capacity to make the decision yourself.

According to the Adults with Incapacity Act (Scotland) 2000, the medical profession and healthcare teams must assume that a person has the capacity to make their own decisions regarding their care and treatment unless proved otherwise. Therefore, a person is only deemed to lack the capacity to make a decision if they can’t:

• Act on their decisions.
• Make a decision.
• Communicate their decisions.
• Understand their decisions.
• Remember the decisions they have made.

It must be remembered that even if it is proven that you lack the capacity to make decisions about your care and treatment if you have made an Advanced Directive, healthcare and medical teams must take your wishes into consideration.

Advance Decisions in Northern Ireland

Although healthcare and medical professionals must follow your advance decisions as laid out in your legal document, only if they know about it. If they do know about it and choose to ignore your instructions, they may face prosecution.

However, much as your advance decisions should be taken into consideration, they are not legally binding in Northern Ireland. This means that if medical and healthcare teams or your family and other loved ones decide that it is in your best interests to proceed with the recommended treatment, they can overrule your wishes. That doesn’t mean that it’s not worth having advanced decisions in Northern Ireland; they are in that they give you a voice and provide vital guidance in how you wish to be treated if you are terminally ill.

To decide whether you have the capacity to make a decision about your care and treatment, there are a series of common law tests that have been developed by the courts for legal purposes. The questions asked are based on whether the person is able to understand and retain information about the proposed treatment and care if they believe the information they are given, as well as if they understand the risks and subsequent needs involved with the treatment or are to reach a comprehensive conclusion, and ultimately a decision.

At Norfolk Will Writing, we have been helping our clients write their wills and assisting executors of estates and families manage the probate process for over 20 years. We offer a personalised service, keeping the process as simple and easy as possible. Our experienced consultants are on hand to guide you at every step. Contact us for your free consultation and to book an appointment with one of our consultants to discuss writing your will today or carrying out your executor duties.