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Living wills

A living will is not a legally defined term but is used to cover two types of documents: Advance decisions and advance statements. These are two very distinct documents and you should consider carefully which one you wish to have prepared. Both documents make provisions for when you are unable to communicate with medical professionals about medical treatment.

If you do not have mental capacity, whether due to dementia, stroke or an accident, then your doctors are under an obligation (ethical and legal) to act in your ‘best interests’. The only exception to this is if you have an advance decision refusing treatment in place. As long as this document is valid and applicable to your current medical condition, then the doctors must accept it as an instruction for treatment.

An advance statement, however, is not legally binding and only needs to be ‘taken into account’ by medical professionals. It is mainly used to give a more general statement and guidance about your preferred care and treatment, i.e. if you have religious beliefs that alter what kind of treatment you receive.

The Mental Capacity Act of 2005 introduced a Lasting Power of Attorney (LPA) for health and welfare, which allows a person to appoint an attorney to make decisions concerning their care and treatment if they are unable to do so themselves.

Clients will need to seek advice if an LPA has been made before or after a living will, as in many cases the earlier document will no longer be applicable. Likewise, the Mental Capacity Act also has implications for living wills that relate to life sustaining treatment made prior to October 2007.

If you have a living will then speak to our specialist consultant to discuss whether it is still valid.

Contact our wills team

Phone us: +44 (0) 20 7759 5531

South Africa

Regent Square
Doncaster Road
Kenilworth 7708
Cape Town
t: +27 (0) 21 657 2120

United Kingdom

Castlewood House
77/91 New Oxford Street
London
WC1A 1DG
t: +44 (0) 20 7759 7514

Australia

Suite 8.06
9 Yarra Street
South Yarra
Melbourne VIC 3141
t: +613 (0) 86 514 500

Hong Kong

Level 1102
The Lee Gardens
33 Hysan Avenue
Causeway Bay, Hong Kong
t: +852 3959 8681

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