Darren Donnithorne
Darren Donnithorne
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Who will make decisions about your medical treatment if you are unable to make and communicate those decisions? You could designate someone to act as your medical power of attorney and appoint them as the person to make medical decisions for you when you are unable to do so for yourself.

But why not write down your own instructions regarding your medical care preferences so that people will follow your wishes if you are unable to communicate them yourself?

Living wills are written legal documents designed to give very specific instructions about exactly what type of medical care you want if you are incapacitated and cannot speak for yourself. It is called a “living” will because the declarant is still alive.

Incapable

It is only triggered when the person who has made the will becomes incapable of making their own decisions. 

Whilst you retain capacity, your word will override anything contained in your living will. Whether or not you are incapable will be determined by an independent physician. 

Living wills are often made by people with serious illnesses or people of advanced age, but should be considered by all of us.

Anybody can make a living will, so long as they are of adult age and have mental capacity when the document is signed.

Here are some things to consider when creating your living will. 

1. Get professional advice

A living will enables a person to make clear and measured decisions about how they wish to be treated in the event that they lose the capacity to make informed decisions for themselves.

Common examples include the use of resuscitation, artificial breathing, nutritional and hydration assistance, and the use of life-saving treatments for specific illnesses.

In determining your wishes, it may help to consult with your doctor about the various medical situations that might arise and the various options available to you. These are very personal choices that will affect what medical care you receive. 

A living will is binding to the extent that a doctor could face legal action if he or she uses life-saving treatment on a patient against their wishes.

However, a living will cannot be used to request a specific form of treatment or to require a doctor to take a positive step which would cause a patient’s death –– any such request within a living will would not be binding.

2. Communicate your wishes

Don’t risk misunderstandings and complications that could put at risk your wishes not being implemented. Talk to your family members and your doctor about your plan and show them your living will.

Make sure that they understand your wishes.  This way there will be no surprises or confusion during an already difficult time. 

3. Consider appointing a healthcare proxy

A living will cannot cover every possible situation so designating a healthcare proxy can give you peace of mind that someone you trust will make the decisions you want to be made on your behalf with your best interests at heart.

This person will be guided by your living will and will have the authority to interpret your wishes in situations that are not described in your living will. He or she should be mature, direct and comfortable with candid conversations.

They may need to stand up to your doctors and family members to make sure your wishes are followed. They will only have power if you become incapacitated. 

4. Consult an attorney

Your legal advisor will ensure that the required procedures are followed to ensure that the living will is valid.

For example, the document should be signed and dated in the presence of an independent witness.

The witness should be an unrelated adult who does not stand to gain anything by your death.

You must have capacity and clearly understand what you are seeking to implement. 

5. Review your living will regularly

Be sure to review your living will once a year to make sure it still fits your wishes. A living will can be rescinded or updated at any time.

If you do make changes, destroy old copies and make sure your doctor, health care agent and family know about the changes.

6. Store the document in a safe place

Not only is it important that your living will is stored in a safe place, but if the aim is to ensure that the living will is produced in the event that a serious decision has to be made as to medical treatment when you are incapable of communicating your wishes, then one solution is to provide copies to your doctor and your next of kin with your attorney retaining and carefully storing the original.  

Living wills are not just for older adults or people suffering from an illness, because unexpected end-of-life situations can happen at any age.

Your written instructions can help reduce confusion or disagreements during an already difficult time.

 They will speak for you when you are not able to speak for yourself. These documents are not complicated, and allow you to be specific about how you do and do not want to live.

 

Darren Donnithorne is a Senior Associate and the Head of the Property and Estate Planning Team at Marshall Diel & Myers Limited.