A living will

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A living Will is a statement expressing your views on how you would or would not
like to be treated if you are unable to make decisions about your treatment
yourself at the relevant time in the future.

The Mental Capacity Act 2005 provides a
legal framework to help empower people to make their own decisions and to make
clear what actions carers and family can take. It puts the law on advance
decisions (or living Wills) on a clear statutory basis for the first time. The
rules relate particularly to advance decisions to refuse treatment, including
refusal of life-sustaining treatment.

Mental capacity

When you are ill,
you can usually discuss treatment options with your doctor and then jointly
reach a decision about your future care. However, you may be admitted to
hospital when unconscious or unable, on a temporary or permanent basis, to make
your own decisions about your treatment or communicate your wishes. This may
happen, for example, if you have a car accident or a stroke or
develop dementia. To use the legal term – you would ‘lack mental
capacity’ to make an informed decision and /or communicate your wishes.

In such situations, doctors have a legal
and ethical obligation to act in your best interests. One exception to this is
if you have made an advance decision refusing treatment. If this decision is
valid and applicable to the circumstances, medical professionals providing your
care are bound to follow it – whether or not they think it is in your best
interests.

Advance decision or advance statement

Advance decisions and advance statements
are the formal names for the two different types of ‘living Will’.

The term ‘living Will’ doesn’t have a
legal meaning but can be used to refer to either an advance decision or an
advance statement.

An advance decision is a decision to
refuse treatment; an advance statement is any other decision about how you
would like to be treated. Only an advance decision is legally binding, but an
advance statement should be taken into account when deciding what is in your
best interests.

Why make an advance decision?

You may wish to make an advance decision
if you have strong feelings about a particular situation that could arise in
the future. This might relate to having a limb amputated following an accident
or having a blood transfusion.

More commonly, you may have been told
that you have a terminal illness or form of dementia. You may wish to prepare
an advance decision indicating the type of treatment you would not want to
receive in the future. Making an advance decision may give you peace of mind
knowing that your wishes should not be ignored if you are unable to take part
in the decision-making process at the relevant time.

 

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