Living Wills

What is a Living Will?

A Living Will is a legally binding option for people wishing to retain control over future medical decisions. It is not concerned with financial affairs.

Usually, it gives specific details with regard to medical treatment should someone be incapable of communicating their wishes. It can request that a person is kept alive for as long as possible or it can request that life sustaining treatment is refused. It is legally binding as long as, at the time of signature, the person involved:

  • is deemed mentally capable of making the decisions contained within the Living Will;
  • understands what will happen in consequence of the Living Will;
  • makes clear what future treatment is requested with regard to medical circumstances that may later arise;
  • makes the Living Will voluntarily and not under the influence of someone else.

The Living Will can be as detailed as desired: it can specify that antibiotics be avoided or that tube feeding or resuscitation not be attempted in case of an emergency. On the other hand, it may say that all life sustaining treatment should be attempted, even if it offers little chance of survival. However, unlike a refusal of treatment, a request for every possible therapy is not legally binding on the medical team. But at least they will know that the person wants every possible opportunity to recover from their illness even if the chances are slim.

Can Anyone Make A Living Will?

Yes, anyone who is over eighteen years of age and is capable of understanding the nature of their directions and foreseeing the effects of those directions can generally make an Advance Health Care Directive.


Why Consider A Living Will?

If, for any reason, someone is worried about their future medical care, a Living Will offers peace of mind that their wishes will be followed. It is based on the principle that we are all entitled to refuse or demand medical treatment. It simply offers this same right to people who are no longer capable of communicating their decisions effectively.

Living Wills are recognised by all professional medical bodies including the British Medical Association and the Royal College of Nursing. In theory, your loved one can write out a Living Will and sign it in the presence of any two witnesses for it to be legally binding.


What Do I Need To Consider Before Making A Living Will?

You should think clearly about what you would want your medical treatment to achieve if you become ill. For example:

  •  If treatment could prolong your life, what level of quality of life would be acceptable to you?
  • How important is it to you to be able to communicate with family and friends?
  • How will you know what technology is available for use in certain conditions?

The purpose of a Living Will is to give you confidence that your wishes regarding health care will be carried out if you cannot speak for yourself.

However, a request for euthanasia would not be followed, as this would be in breach of the law. It is a criminal offence to accelerate the death of another person by an act or omission. It is also an offence to assist another person to commit suicide.

Can I Cover All Possible Health-Care Decisions In A Living Will?

No, it would not be possible to anticipate everything. However, if you wish, you can appoint someone to have Enduring Guardianship (Lasting Power of Attorney) for you; this person can then make decisions on your behalf about your health-care and other personal matters (such as your finances) if you are no longer able to do so.

Please ask about Last Powers of Attorney (LPA).  There are two types of LPA one covering health and welfare and the other property and financial affairs.  These two documents which you register with the Office of the Public Guardian, enable you to give authority for another person or person(s) to act according to your wishes in the areas of health and welfare and/or property and financial affairs, if you no longer have the mental capacity to handle them yourself.

What do I do with the completed document?

You should keep it in a safe place, and you should give a copy to your own doctor, to your Enduring Guardian if you have appointed one, to a family member or friend and, if you wish, to your solicitor.  It’s important that your living will is entered into your medical notes so that in an emergency it is found and acted upon, so consider sending a copy to any hospital which is treating you.

If you are admitted to hospital or to a Residential Aged Care Facility (RACF – previously called a hostel or a nursing home), make sure the hospital or RACF staff know that you have a Living Will which they might refer to as an Advance Health Care Directive and either give them a copy of it or tell them where a copy can be obtained. You may also wish to carry a card in your purse or wallet stating that you have made a Directive, and where it can be found.


Changing a living will and further advice?

Consider reviewing your living will on a regular basis to make sure you’re happy with it and particularly if your situation changes.  You can change or cancel it if you are able to think rationally and clearly explain what you want to happen. Always, put things in writing and destroy old versions.

It is strongly recommended that you review the document every two years, or if/when there is a major change in your health status (e.g. if you are diagnosed with a serious illness or if you are admitted to a RACF).