A Living Will (more commonly known as an Advance Directive) is a formal document which sets out the circumstances in which a person does not want to receive certain medical treatments, should they be unable to communicate their wishes at some time in the future. It allows someone to express their wishes in respect of how far they want medical staff to go to keep them alive following a life-altering event such as a major stroke, paralysis or the later stages after a terminal diagnosis.
Importantly, while an Advance Directive can record what treatments you do not wish to receive, it is not possible to use it to ask for your life to be ended or to request particular types of treatment.
The benefit of an Advance Directive is it removes the burden of such difficult decision making from your loved ones preventing disagreements within the family as to the best of course of action.
Advance Directives are not legally binding under Scots law. However, they are strong evidence of your wishes and are likely to be followed by the medical profession particularly given 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.
People can wrongly assume that an Advance Directive is not required if you have granted a Welfare Power of Attorney. A Welfare Power of Attorney gives limited powers to your Attorney to make decisions in relation to your medical treatment if you do not have the capacity to do so. However, these powers do not go as far as the specific circumstances which are covered in an Advance Directive. Clients often put an Advance Directive in place at the same time as granting a Power of Attorney.
An Advance Directive should be signed in the presence of a witness and, unlike a Power of Attorney, does not require to be registered anywhere. We always recommend to clients to tell their GP if they have made an Advance Directive and a copy should be placed with your medical records so that it is easily accessible in an emergency situation. It is also important to tell your love ones so that they are aware you have one.
If you would like to discuss Living Wills/Advance Directives then please contact one of our Lifetime Legal team on 01383 721141.