Most of us have the luxury of personal autonomy. We can decide how we live, where we go, what we do. We make choices for ourselves – some big, some small – every day.
But imagine if this were all taken away. Imagine becoming unable to make important decisions, or to communicate your wishes to others. Imagine if dementia were to take hold, or an accident were to rob us of our mental capacity.
These aren’t thoughts to dwell on, but it really does make sense to give this some consideration. After all, none of us can know what the future has in store. And steps can be taken now – while still able – to make clear what you would, and wouldn’t, want to happen in the event that you become forced to rely significantly on others.
This applies to all aspects of life, but it’s perhaps particularly important when it comes to health and welfare. We all want to be able to have some say in the medical treatments we receive, and in the care given to us. But the reality for some people is that their condition doesn’t allow that.
A living will has been a reliable way of a person setting out certain instructions about big health decisions that may have to be made about them. An enforceable legal document, it lets the health professionals caring for you know how you feel about the idea of receiving treatment while in a state where you can’t make those wishes known. Essentially, it enables you to refuse certain types of treatment, such as CPR.
In recent years, there has been a trend towards Lasting Powers of Attorney (LPAs) as opposed to living wills, although there is no reason why you can’t have both. In fact, they do different things. While a living will says what you want to happen in specified circumstances, an LPA appoints a person or people to make those types of decisions on your behalf if you become unable to do so. It places choices about your life and your care in the hands of people you trust, asking them to make the call on the medical treatment that should and shouldn’t be given to you.
The crossover with a living will is in the background knowledge that the attorneys have. For example, you may have told them (or even set out in your LPA) that, if situation x arose, you wouldn’t want to be resuscitated. The attorneys’ decision is therefore likely to be influenced by that. But, unlike with a valid living will, an LPA doesn’t tie the medical professionals’ hands in having to carry out your wishes if those wouldn’t be in your best interests.
If you have both a living will and an LPA in place, it’s really important to consider the effect of one on the other. It comes down to timing; where one contradicts the other, the more recent document would apply. This could mean that wishes set out in a living will are superseded by a subsequent LPA. A ‘do not resuscitate’ instruction in your living will could be overridden by a later LPA in which you give authority to your attorneys to make that decision. Ideally, that situation would be avoided by specific wording that enables the two documents to work together.
These are all things your solicitor will discuss with you. We advise clients throughout the process, from the types of wishes they’d like to express, to the way in which they would like to do that. We also help them think about how best to broach the subject with those close to them. This is a really important aspect of these types of future plans. In our experience, clients who put a living will in place tend to be firmly fixed on the idea that, if terminally ill and in a non-communicative state, they would not want to be kept alive. They feel relieved when those wishes are put in black and white, and are keen to pass their living will to their GP and to loved ones. But family members are often not able to handle that information in the way their relative does. The same can be true of LPAs; loved ones may struggle to deal with the thought of a family member becoming incapacitated.
That is why it’s usually best to speak with those close to you about your plans; let them know how you feel, and definitely don’t spring a living will or an LPA on them. It can be useful to also talk to a medical professional about your plans, as they may be able to offer good advice from a healthcare perspective. It’s really about making an informed decision and keeping the important people in your life informed too.
Some people will decide to make a living will or an LPA after being diagnosed with an illness. Others will simply see it as a form of future planning, alongside their will and their trusts. But every situation calls for a clear and careful steer on the terms that will be put in place and what these would mean for the person making the living will or LPA, and those close to them.
It’s also crucial to remember that, once in place, these documents stand (subject to one being superseded by the other). That is why any change of heart should be acted on. Keeping your living will and LPA current and in line with your up-to-date wishes is vital. So we always recommend that clients revisit these documents periodically, and urgently if they have any second thoughts.
We’re currently offering a simple Lasting Power of Attorney for a fixed price, starting from £350 plus VAT.
To find out more about making a living will or an LPA, or any other future planning, contact me on