HM Insights

What is a Living Will and do individuals have the right to assisted dying in Scotland?

Summary: In Scotland, Living Wills are not legally binding but they do provide guidance to your family/healthcare team about how you would wish to be treated. Living Wills are beneficial because they:

What is a Living Will and do individuals have the right to assisted dying in Scotland?
  1. give you a chance to convey your wishes if you are unable to communicate;
  2. remove potential burden from family members who may be in a situation of crisis or grief;
  3. help avoid family disagreements/conflict; and
  4. give you peace of mind

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With the news that, on average, one British person a week is travelling to Dignitas – the assisted dying organisation in Switzerland - to end their life it has been reported that Justice Secretary Robert Buckland is actively considering a ban on assisted suicide in the UK.

Here, we consider how an individual can make a statement to communicate their wishes in terms of end of life care and to what extent.

What happens if you are unable to communicate your end of life wishes due to illness or injury?

No one likes to think about being terminally ill or dying so it is not unusual that an individual's wishes around this issue can be left unsaid.

It is often the case that when decisions come to be made about end of life care an individual can be too ill to communicate but by planning ahead you can ensure that your wishes are known to those caring for you.

By making a Living Will or 'advance directive', a simple document recording your wishes for end of life care, you can share your views with your family/healthcare team on how you wish to be treated should you be unable to communicate due to illness or injury.

Legal status of a Living Will in Scotland

In Scotland, Living Wills are not legally binding but they do provide guidance to your family/healthcare team about how you would wish to be treated.

Living Wills are beneficial because they:

  1. give you a chance to convey your wishes if you are unable to communicate;
  2. remove potential burden from family members who may be in a situation of crisis or grief;
  3. help avoid family disagreements/conflict; and
  4. give you peace of mind

Although the Assisted Dying Bill, which had the stated aim "to enable competent adults who are terminally ill to be provided at their request specified assistance to end their own life", had its first reading in the House of Lords on 28 January 2020, Living Wills are presently not used to give effect to any intervention with the express aim of ending life, such as euthanasia or assisted suicide.

While a Living Will which contains a request for a particular treatment is not enforceable, a Living Will can be used to refuse specific treatments or procedures should you suffer from an incurable or irreversible illness, such as the use of ventilator, invasive surgery if there is no prospect of recovering or potentially your views on the use of hydration and nutrition to prolong life.

Is it easy to make a Living Will?

Anyone over the age of 16 can make a Living Will, provided that they understand the nature and extent of what it means to make a Living Will.

The Living Will needs to be signed and dated by you and witnessed by an independent adult.

A copy should be given to your solicitor, your GP and any other healthcare professionals you have an association with, and your family.

We're here to help

Should you wish to discuss making a Living Will, please do not hesitate to contact the Private Client team at Harper Macleod using the form below or call one of our offices on:

Glasgow: 0141 227 9344                           Inverness & Highlands: 01463 795 035

Edinburgh: 0131 247 2500                         Shetland01595 695 583 

Elgin: 01343 542623

We have solicitors and offices across the country in Glasgow (next to Glasgow Central Station), Edinburgh (next to Haymarket Station), Inverness, Thurso, Elgin and Shetland, ready to help in person or over the phone. 

We can provide the assistance you need to protect your assets and your loved ones. This will allow you to put your mind at ease, knowing everything is in hand.

Useful Links

MAKING A WILL IN SCOTLAND

POWER OF ATTORNEY IN SCOTLAND