Mon 23 Dec 2019

Living Wills

A Living Will (also known as an Advance Medical Directive) should not really be called a Will at all as it does not operate after your death, and has nothing whatsoever to do with distribution of your estate.

It is designed to record your wishes so that if you became unable to communicate them to doctors or medical staff, they would be aware of the way in which you would wish to be treated in the event of incurable, terminal physical impairment. It does not encourage Euthanasia in that Living Will does not ask anyone to take an active part in assisting you to die. It only asks that medical staff either intervene, or do not intervene, in certain circumstances, and while it may request that all necessary steps are taken to prolong your life as long as possible, may by the same token request that they simply allow you to die naturally, and as comfortably as possible.

Is a Living Will binding?

There is no legislation in Scotland making such a document binding. There is however continued comment in press and legal circles suggesting that such documents should be given weight, and this has gathered momentum over the years. At the very least many people find it helpful and comforting to ensure that their wishes are recorded, in the hope that their family and medical staff will take them into account if the need were to arise.

The British Medical Association’s code of practice advises its members to follow the general spirit of the statement where possible.

What should a Living Will say?

Whatever you want it to. As mentioned above, you may wish it to specify procedures or treatments that you would not wish to be carried out to prolong your life, or alternatively you could request that your life be prolonged as long as possible. You can nominate someone to be consulted in connection with your wishes as expressed in the Will. Obviously, the contents of a Living Will are very personal and require to be considered very carefully.

What should I do with the document?

You should give a copy to your doctor and place a copy with your conventional Will. You should also keep a copy at home with your personal papers and advise your family where to find it. You could also carry a card, similar to a donor card, confirming you have made a Living Will and where it is.

What if I change my mind?

You can revoke it at any time, and it has no effect at the time of serious illness if you have capacity to communicate your wishes to doctors or medical staff. If you do not change your mind you should arrange for all copies you have made to be returned to you so that you can destroy them. For this reason, it is a good idea for you to retain a record of all of the people or organisations to which you have sent a copy, or even told about the existence of the document.

Will the existence of a Living Will affect life insurance policies in the same way as suicide can?

It should not do so, but you should take advice on the terms of the policy just in case

I, *, residing at *, wishing to give directions to my family and to such medical advisers as may attend me in the future regarding my medical care and treatment, declare: -

I wish these instructions to be acted upon if two registered medical practitioners are f the opinion that I am no longer capable of making and communicating a treatment decision, and, that I am:

  • unconscious, and it is unlikely that I shall ever regain consciousness; or
  • suffering from an incurable or irreversible condition that will result in my death within a relatively short time; or
  • so severely disabled, physically or mentally, that I shall be totally dependent on others for the rest of my life.

I refuse any medical or surgical treatment if:

  • its burdens and risks outweigh its potential benefits; or
  • it involves any research or experimentation which is likely to be of little or no therapeutic value to me; or
  • it will needlessly prolong my life or postpone the actual moment of my death

I consent to being fed orally, and to any treatment that may:

  • safeguard my dignity; or
  • make me more comfortable; or
  • relieve pain and suffering,

even though such treatment might unintentionally precipitate my death.

I wish the decision of my medical advisers and such of my next of kin as are then available, acting in consultation with each other and in the knowledge of my views as expressed in this declaration, to be final in relation to all matters of treatment, including the withholding or withdrawal of treatment: IN WITNESS WHEREOF these presents are signed as follows:

Signed by the said *

at (place)                                                  on

in the presence of

Signature of Witness………………………………..

Full name of Witness……………………………….          ……………………………….    

Address of Witness…………………………………

If you have any questions or would like assistance with making your Will then please visit contact our Family Law Team. For more information on our services, please visit our dedicated Wills page.

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