Living Wills – What are they and what are the alternatives?

A Will allows you to give directions as to how your estate is to be distributed when you pass away. A Living Will is quite different and is an expression of a person’s wishes about their future medical treatment, known as an “advance decision”. These are decisions to refuse the provision of medical treatment if at the time when that treatment is to be given, the decision-maker has lost capacity to consent to it.  If the Living Will is to operate as a refusal of life-sustaining treatment, then it must be made in writing and signed by the decision maker in the presence of two witnesses.

In the recent case of Brenda Grant, Mrs Grant made a Living Will after witnessing her mother lose independence through dementia. The document stated that Mrs Grant would not wish to have treatment to prolong her life if she was no longer of sound mind.

In October 2012 Mrs Grant suffered a stroke which left her unable to walk, talk or swallow.  She was fitted with a stomach peg so that she could be fed directly and she was kept alive for 22 months.  The hospital had been given a copy of the Living Will, however it had been misplaced amongst Mrs Grant’s medical notes. Her children were not aware of the Living Will. It was only after Mrs Grant’s GP became involved that her Living Will came to light. Mrs Grant’s family and GP then successfully argued that the document should be respected and Mrs Grant’s treatment was withdrawn.

Making a Living Will can be complicated, and it is vital that it is made in accordance with strict statutory requirements, otherwise its validity can be challenged. As can be seen from Mrs Grant’s case, Living Wills have their flaws.  It may therefore be more prudent to consider making a Lasting Power of Attorney (“LPA”) in respect of health and welfare as an alternative to a Living Will.

Under an LPA a person can grant power to their attorneys to accept or refuse life sustaining treatment.  A person can also leave instructions to their attorneys regarding end of life decisions.
An LPA is a more substantial document than a Lasting Will, and accordingly is more difficult to misplace.  For an LPA to be valid it must be registered with the Office of the Public Guardian, a searchable register which will show whether an LPA exists.

If you are considering making a Will, a Living Will or a Lasting Power of Attorney please contact our Wills and Probate department on 020 7226 0570 or email Graeme Taylor at Graeme@gelbergs.co.uk.