A ‘living will’ is a document which records the circumstances in which you consent to or decline (specific or non-specific) medical treatment should you be incapable of expressing these views when you are ill or incapacitated. It allows you to plan ahead and make your intentions about your future care clear and it can be detailed or general in its terms.
Despite its name a ‘living will’ does not have any testamentary value and it only applies whilst the Granter is alive. The proper term for a living will is an ‘advance medical directive’ (AMD).
AMDs are commonly used to express the Granter’s wishes not to receive life prolonging medical treatment should they become seriously ill with no prospect of any real recovery or quality of life. This question has never been more relevant than it is today where advancement in medical technology has meant life can be prolonged where there is little chance of recovery to a normal life. One of the strongest benefits of having an AMD in place is that your loved ones will know with certainty your wishes without being left to make a very difficult decision on their own.
The Adults with Incapacity (Scotland) Act 2000 (‘The Act’) does not specifically mention AMDs but defines incapacity in a purposeful way:
‘“incapable” means incapable of: –
(a) acting; or
(b) making decisions; or
(c) communicating decisions; or
(d) understanding decisions; or
(e) retaining the memory of decisions”.
Living wills can also be used to nominate a health care proxy. This is someone identified by the Granter as a person they would want to be consulted about their medical options and to represent their views on their behalf. This is different to a Power of Attorney and relates specifically to medical treatment only. ‘The Act’ formalises the rules and scope within which a health care proxy can operate. AMDs should not be confused with voluntary euthanasia since they cannot confer a treatment that would actively cause death. Nor can AMDs be used to refuse basic administrative nursing such as hygiene care.
Scottish Position/The effect of a ‘living will’
The Scottish position is different to the English position and some have considered Scots law to be ‘lagging behind’ in this area. There are at present no formalised rules or even much case law in relation to AMDs in Scotland. Currently, living wills serve to show the intention of the Granter only, and are not legally binding documents. However, the Supreme Court has expressed general support for AMDs, even so far as suggesting that if a practitioner ignored a living will they could be guilty of assault. Decisions in the English courts supporting living wills were later reflected in statute law giving legal validity to living wills in England. This support from the Supreme Court has not though been transformed into Scots law.
The British Medical Association (BMA) also seems to support AMDs. The guidance of the BMA’s Medical Ethics Department takes into account when applying the ‘best interests’ principle of a mentally incapax person “the patient’s own wishes and values (where these can be ascertained), including any formally documented advance decision”. The BMA are advised to make every effort to find out if there is an AMD if a situation arises where a living will or health care proxy becomes relevant. ‘The Act’ aforementioned also requires health professionals to take account of a patient’s present and previous wishes in whatever way they were communicated. This suggests that both the BMA and the Scottish courts would accord serious weight to AMDs and that they would be an influential factor when making a decision about a Granter’s medical treatment. Therefore, AMDs are beneficial for peace of mind for anyone concerned about having their wishes considered in the future, should they be unable to communicate.
Preparing a ‘living will’
An AMD is usually prepared and witnessed by a solicitor. It is an uncomplicated process and clients are advised to prepare such documents in advance of any illness occurring. The AMD can be revoked or altered by the Granter at any time while they are capax.
The Granter decides who holds a copy of the AMD. Usually a copy would be kept with the Granter’s medical records held with their GP. It would also be useful for loved ones and an Attorney (if one had been appointed under a Power of Attorney) to be aware of the existence of and have a copy of the AMD so that it is easy to locate should the situation where it applies arise.
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