Living wills are documents that state the health treatment you want to receive once you are unable to tell doctors what you want. The idea behind living wills is that they ensure that your views are clear for doctors and family members, in the event you cannot present you own views for yourself. Living wills are only guidelines and their force and effect can be limited depending on the jurisdiction. Living wills do not appoint another person to act on your behalf in a medical emergency or in the case of incapacity. It is important to differentiate a living will from a power of attorney, or an actual last will and testament.
Living wills are advanced directives that can serve as guidelines to doctors
A power of attorney is a specific legal document that allows someone to act on your behalf. You need to have complete trust in the person who you are appointing to act on your behalf. These documents have a significant impact on your life and you should seek professional advice if this is the kind of document you are looking for.
Power of attorney is different from a living will and has a specific legal function
Your last will and testament is an essential document that deals with how the assets in your estate should be distributed and how things like your digital life should be dealt with after your death.
Do Not Resuscitate Orders (DNRs)
A Do Not Resuscitate Order or DNR means that a doctor is not required to resuscitate a patient when their heart stops. A DNR can be a clause in a living will that states that the patient does not wish to have CPR in certain circumstances. A living will is made when a person is mentally competent and the DNR clause will usually say that if the person is suffering from an incurable disease or injury that cannot be successfully treated, life-sustaining treatment should be withheld or withdrawn.
What if there is no legislation for living wills?
Some jurisdictions, like South Africa, do not have legislation for living wills. Living wills function as directives for these jurisdictions. Depending on the wording of the living will, it can be interpreted to include a DNR order. The practice for living wills in South Africa is that they should be respected by doctors, provided the doctor is satisfied that the living will represents the current wishes of the patient. However, it is important to emphasise that a living will in South Africa does not allow another person to make decisions on behalf of the patient. This can only be done through a power of attorney.
What if there is legislation for living wills?
Some jurisdictions such as England and Wales (but not Scotland and Northern Ireland) have specific legislation dealing with living wills, which makes them legally enforceable documents. The UK Mental Capacity Act (2005) provides the statutory basis for living wills. The Act has a framework for allowing you to record and identify how you want to be treated when you are no longer able to express those decisions yourself. The Act allows you to appoint a Welfare Attorney, and state whether you wish this person to make decisions on your behalf about life sustaining treatment. Essentially, the Act creates a living will and power of attorney hybrid.
Actions you can take:
- If you need a living will document we can draft one for you that expresses exactly your wishes;
- If you already have a living will, we can review it to make sure it is the right document for where you live;
- If you want clear and easy to understand essential documents such as your will and a power of attorney we can draft them for you.