A moving description on the BBC website of a family’s campaign to convince doctors that their sister, severely injured following a car crash, would not want medical intervention to keep her alive, has been widely shared.

Many families will identify with the distress of either trying to second guess the wishes of a precious child, sibling or parent in a coma with no or little chance of making even a partial recovery, or knowing those wishes but not being able to act on them because they were not written down. This was the situation faced by the Kitzinger family; they knew their sister would have refused treatment had she been able to articulate her feelings but as she had not legally recorded her wishes, doctors were faced with little option but to continue treating her.

Don’t leave your future to chance

One of the points made in the BBC article was that a living will (the legally recognised term is an ‘advance decision’), that enables a person to document what they want to happen in the event of becoming seriously ill, can (and should) be made at any age. Many people assume that a living will is only needed as you get older but, as the Kitzinger case demonstrates, anyone could suffer a devastating accident at any stage of their life.

So what is a living will? It is a legal document that, should you lose capacity, records your wishes about what you want to happen. As well as a wish to refuse life-sustaining treatment, it could include a statement about non-resuscitation, and where you want to be treated (for instance you can stipulate that you prefer to stay within a particular geographic area). Many people will make a living will either at the same time as a health and welfare Lasting Power of Attorney (LPA), or at a later date. However, the timing of both documents is important: altering your LPA at a later date can invalidate your living will, meaning that you will have to make a new one. Nonetheless, the Court of Protection has been known to take a pragmatic approach: in 2014, it restored a living will which had been invalidated by a later LPA. Furthermore, the Office of the Public Guardian, when registering a health and welfare LPA, will cross-refer to an existing living will providing the LPA makes it clear which document has priority in relation to particular decisions.

The legal status of a living will

The Mental Capacity Act 2005 provides the statutory basis for a living will. It enables you, while you have mental capacity, to document your wishes clearly should you lose mental capacity in future either through an accident, a stroke, dementia or other circumstance.

If, at any time, you change your mind about having a living will, then you can cancel it. You will need to destroy the document and tell all those who know you have one in place, including any medical professionals who can make a note in your records. However, having a living will in place will not only give you some control over your future but it also means that your family and friends will know your wishes and be able to act upon them. A living will is one way to achieve peace of mind.

About the author

Tracy Ashby Senior Associate

Tracy is an experienced private wealth solicitor specialising in estate and wealth planning including advice on, and drafting of, wills and trusts, and inheritance tax and succession planning.