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Living Wills - Something to consider?

Living Wills - Something to consider?

As people live longer and medical science continues to make huge advances, it becomes all the more important to consider the treatment you would wish to receive at the end of your life, if you are diagnosed with a debilitating condition or suffer a catastrophic injury.

If at that time you retain capacity and can communicate then you are entitled to refuse medical treatment.  However, if that capacity or the ability to communicate is lost for whatever reason then so too is your ability to refuse treatment. 

A Living Will or Advance Directive seeks to remedy this by setting out the circumstances in which a person does not wish to receive certain medical treatments, should they be unable to communicate their wishes at some time in the future.  They are usually associated with end of life care where treatment may prolong your life but there is no prospect of recovery.  Many of us would not wish to receive invasive treatment if this was only to have the effect of prolonging our life for a few weeks where there was no quality of life for that short time.

Setting your wishes out in a written statement means that your close family are aware of your wishes and feelings and also ensures medical staff are fully aware of how you wish your treatment to be carried out.

While an Advance Directive can record what treatments you do not wish to receive, it is not possible to use an Advance Directive to ask for your life to be ended or to request a particular type of treatment.

Having an Advance Directive removes the burden of making decisions from your family.  If a family member is faced with a difficult decision and simply does not know what you would have wanted this can cause feelings of guilt or uncertainty after a decision has been made or disagreements within the family.

While Advance Directives are not legally binding in Scotland they are strong evidence of your wishes and likely to be followed particularly considering that the Adults with Incapacity (Scotland) Act 2000 provides that the past wishes and feelings of an adult with incapacity should be taken in to account.

An Advance Directive should  be signed by you in the presence of a witness and does not require to be registered anywhere.  Ideally, your Advance Directive (or at least a copy of it) should be placed with your medical records so that it is easily accessible in an emergency situation.  You may also wish to discuss your Advance Directive with your doctor.  It’s also a good idea to tell your spouse or partner or children that you have one.

Many assume that an Advance Directive is not required if you have granted a Welfare Power of Attorney.  A Welfare Power of Attorney gives certain powers to your Attorney to make decisions in relation to your health if you do not have the capacity to do so.  However, this does not usually cover the specific circumstances envisaged within an Advance Directive.

Lorna Christine is a Partner in our specialist Private Client team. For more information on Advance Directives contact Lorna on 01382 229111 or e-mail, alternatively contact any member of our private client team.

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Lorna Christine
Lorna Christine

Lorna Christine


Wills, Trusts & Succession

For more information, contact Lorna Christine or any member of the Wills, Trusts & Succession team on +44 1382 723176.