HM Insights

Are Living Wills a necessity?

A Living Will, also known as an Advance Medical Directive, is a document which allows an individual to specify their wishes for end-of-life care in the event that they become incapacitated or unable to communicate their decisions. It acts as a guide to family members and medical professionals when making decisions about the individual's care, and would ordinarily specify whether the individual would want any medical intervention or treatment aimed at prolonging life such as life support, blood transfusions or artificial feeding.

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Why have one?

Whilst Living Wills are not binding in Scotland, they can be highly persuasive and can provide reassurance to relatives who are faced with difficult decisions.

Many people are concerned about the diminished quality of life which can result from serious health issues and are of the view that they would prefer to die in a dignified manner rather than being kept alive for what may be a prolonged existence with little chance of recovery. There is also the concern about becoming a financial and emotional burden on loved ones. A Living Will can help to ease these concerns by providing clear evidence of a person's intentions.

In the absence of a Living Will, legal permission may be required before medical treatment can be withdrawn if there is a dispute amongst family members and/or the medical practitioners involved.

What do the courts say?

This matter was recently considered by the UK's Supreme Court in the case of a 50-year-old man who fell into an unresponsive state following a heart attack. He did not have a Living Will in place and having been a very active man, his family knew he would not have wanted his life to be prolonged in a vegetative state. His medical team agreed, and the NHS therefore asked the court to find out whether legal permission was required to turn off his life support.

The Supreme Court weighed up the human rights element against the distress caused to the family by a lengthy court process. It ruled that legal permission would not be required due to the consensus amongst all parties concerned. It is only where there is a disagreement amongst relatives and doctors or a difference in medical opinion that a court application should be made.

This decision has been useful in clarifying the position although it has proved controversial. Withdrawing medical treatment could also mean a decision to stop providing food and drink to the patient. This could be considered a breach of the most basic of human rights, and therefore not a decision that should be taken lightly.

Following the court's ruling, however, this could now happen purely on the decision of relatives and doctors if they are all in agreement, leading many to think human rights could be breached too readily and without proper legal consideration. For now, the best solution would be to put a Living Will in place at the earliest opportunity. This can specify that while you do not wish undue medical treatment, hydration and food should not be withheld so that your final days are comfortable.

Living Will vs Power of Attorney

It is worth touching on the key difference between a Living Will and a Welfare Power of Attorney. A Living Will is an express statement of wishes by the granter whilst a Power of Attorney gives someone else, the Attorney, the power to make decisions on the granter's behalf.

For this reason, it is advisable to have both a Living Will and a Power of Attorney in place, as the documents can sit side-by-side and guide your appointed Attorney when making decisions about your care and medical treatment.