Gibson & Associates- Do you know how to Make a Living Will ?

How to Make a Living Will

Making a Living Will is a straightforward process. You simply need to tell a solicitor what medical treatments you would or would not like to receive, should you become unable to communicate your wishes in the future. You then need to sign the statement in the presence of two witnesses, and vice versa.

What is a Living Will?

A Living Will is a document that sets out the types of medical treatment you do or do not want to receive, should you ever become unable to communicate your wishes. They prepare for a situation in which you are incapacitated, whether through injury or illness, and so cannot voice your own thoughts. Hopefully this will never happen, but if it does, a Living Will allows you to outline your treatment decisions in advance. This will guide family members and medical professionals, giving them confidence that they are acting in accordance with your wishes.

For example, imagine that you have a stroke and fall into a coma. Your family are asked whether you should be resuscitated if you stop breathing. This is a difficult question for fraught relatives to answer, and your loved ones may even disagree amongst themselves. However, if you have a Living Will in place, then you may have specified whether you want a Do Not Resuscitate Order. That way, medical professionals have their answer – and the decision has been made by you, not your family.

Living Wills therefore give you more agency over your end-of-life care, or indeed any medical care that you may require in the future. Issues such as whether to switch off a life support machine are major decisions. You may have very strong feelings as to what you would like to happen, should this situation ever arise. But without a Living Will, the choice is taken out of your hands and placed into the hands of doctors and relatives. This could lead to circumstances that you would never have chosen for yourself.

The legalities of Living Wills

Living Wills are also known as an Advance Healthcare Directives. They only take effect once you have become incapacitated, meaning that you cannot make or communicate treatment decisions for yourself. They are governed under Irish law by the Assisted Decision-Making (Capacity) Act 2015. The Act has yet to be commenced, so Living Wills are not legally binding.

Even so, an Advance Healthcare Directive should be enforced if the terms are relevant to the circumstances you face. For example, if you state that you do not want to be resuscitated and you later require resuscitation, the terms of your Living Will should be relied upon. Also, you have effectively withdrawn your consent to be resuscitated, meaning doctors should not proceed with treatment.

However, there are times when a Living Will may not be enforced, including if:

  • It goes against a doctor’s clinical decision
  • It does not account for the exact circumstances
  • You request a specific treatment which is unnecessary
  • Circumstances arise which were not anticipated when it was drawn up

What does a Living Will cover?

A Living Will is tailor-made to you and your preferences. It is entirely up to you what to include in your Living Will, so long as it is legal. Typically, a Living Will covers:

  • What treatment you do not want to receive, should you lose capacity and be unable to communicate by any means
  • What treatment you do want to receive, should you lose capacity and be unable to communicate by any means
  • A designated healthcare representative
  • Other wishes

Let’s look at each of these in turn.

Treatment you do not want to receive

Most Living Wills are primarily concerned with the type of treatment you would not want to receive, if you are incapacitated. Many people fear the idea of falling into a permanent vegetative state or requiring round-the-clock care. A Living Will allows you to ask for life-sustaining treatment to be withdrawn, even if it means that you will die as a result.

You can be very specific with your wishes. For instance, you can state that you do not want to be resuscitated under any circumstance, or you can state that you only want to be resuscitated if doctors believe it may be medically beneficial. You can also ask for life-sustaining treatment to be withdrawn if there is no prospect for your recovery. Or you can refuse certain types of treatment that may be used to keep you alive, such as dialysis or being fed artificially.

Treatment you do want to receive

On the other hand, you may want every attempt to be made to keep you alive. You can therefore request to receive all medical treatments healthcare professionals deem necessary. These wishes are not legally binding but they must be taken into consideration, if they are relevant to your condition.

It is also useful for medical professionals and your relatives to know what your wishes are. A question may arise as to whether to provide life-sustaining treatment. If you have expressed that you would like to be resuscitated and/or receive life-sustaining treatment, then it provides clarity to the situation. Doctors can take this into consideration when deciding how to treat you.

A designated healthcare representative

A designated healthcare representative is responsible for conveying your wishes, as set out in your Living Will. You do not have to appoint a designated healthcare representative if you do not want to. If you do, you can give them the power to interpret and enforce your wishes. You can also give them the power to accept or refuse life-sustaining treatment on your behalf. However, their actions must be guided by the terms of your Living Will.

Your designated healthcare representative must be at least 18 years old. It will probably be your spouse, child or other close family member or friend. He/she must not care for you in a professional capacity.

Other wishes

You can also include other wishes and preferences in your Living Will. For example, you can confirm whether you want your organs to be donated after your death. You can also say where you would like to spend your final days, be it at home or in a hospice. Again, these wishes may not be upheld if it is impractical to do so. However, it can be useful to know what your preference would be, if the option is available.

What cannot be included in a Living Will?

Your Living Will cannot include:

  • Anything that is illegal
  • Details on how you want your estate to be distributed
  • Other wishes, such as legal guardians for your children

Assisted suicide is illegal in Ireland. While you can refuse life-sustaining treatment, you cannot ask doctors to end your life through positive measures. This means you cannot request a lethal injection, for example.

A Living Will also cannot cover the wishes you want to be fulfilled after your death. To do this, you need to make a Will, known in legal terminology as a ‘basic Will’ or a ‘simple Will’. A Will allows you to decide how your assets should be distributed after your death. It also enables you to name executors and legal guardians for your children, and to confirm your funeral preferences.

Who can make a Living Will?

You can make a Living Will if you:

  • Are aged 18 or over, and
  • Have mental capacity

Mental capacity means that you have the ability to understand, retain, use and weigh up information when making a decision. If you make a Living Will in your later years, or after you have been diagnosed with a condition that affects your mental faculties, then your capacity may be called into question. The validity of your Living Will may then be in doubt. To counter such potential problems, you can ask a doctor to verify your mental capacity when you make your Living Will.

How to make a Living Will

The decision to make a Living Will should be entirely yours. It is by no means a requirement and no one should pressure you into making one.

If you do decide that you would like to make a Living Will, you should ask a solicitor to draw a statement up on your behalf. This will be tailored to you and your individual wishes. A solicitor can discuss the various options with you, including the relevant terms and leaving out anything you do not want to specify.

Once you are satisfied with the terms of your Living Will, you must sign it in the presence of two witnesses. These witnesses must be at least 18 years old. One of them should be someone other than a family member. Your witnesses must then sign the document in front of you.

You can change or revoke your Living Will at any point during your lifetime, so long as you still have mental capacity. If you make any changes, they will need to be witnessed.

Living Will vs Enduring Powers of Attorney

If you make a Living Will, you may also want to consider making an Enduring Power of Attorney (EPA). An EPA allows you to nominate an attorney who will make personal care decisions on your behalf, should you lose mental capacity in the future. You can select what decision-making powers your attorney has. This might include the authority to decide where you live and who you see.

However, an EPA cannot deal with healthcare decisions. This differs to some other countries, where attorneys can decide what type of medical treatment the donor receives. This is not applicable in Ireland, as you cannot give anyone else the legal right to make decisions about your healthcare. That is why Living Wills are so useful. They allow you to appoint a designated healthcare representative who can verbalise your wishes regarding medical treatment, when you are no longer able to do so.

Do I need a solicitor to make a Living Will?

In theory, you do not need a solicitor to make a Living Will. So long as the Living Will meets the necessary formalities, it will be considered valid. This means it must be signed and witnessed, and you must have been of sound mind when you made it.

However, it is highly recommended that you consult with a solicitor. The terms of a Living Will are literally a matter of life and death. These are major decisions and a legal professional can advise you on the implications of your choices. A solicitor can also word your Living Will to ensure your wishes are clearly expressed, removing any ambiguity. This is important, because in the event that you do become unable to communicate your wishes, the directive will be the only guidance available to doctors and relatives.

If you would like to speak to a solicitor about making a Living Will, please contact us at Gibsons & Associates.

Complete our online enquiry form, or phone us on 01 872 3143 today.

How to Make a Living Will

Making a Living Will is a straightforward process. You simply need to tell a solicitor what medical treatments you would or would not like to receive, should you become unable to communicate your wishes in the future. You then need to sign the statement in the presence of two witnesses, and vice versa.

What is a Living Will?

A Living Will is a document that sets out the types of medical treatment you do or do not want to receive, should you ever become unable to communicate your wishes. They prepare for a situation in which you are incapacitated, whether through injury or illness, and so cannot voice your own thoughts. Hopefully this will never happen, but if it does, a Living Will allows you to outline your treatment decisions in advance. This will guide family members and medical professionals, giving them confidence that they are acting in accordance with your wishes.

For example, imagine that you have a stroke and fall into a coma. Your family are asked whether you should be resuscitated if you stop breathing. This is a difficult question for fraught relatives to answer, and your loved ones may even disagree amongst themselves. However, if you have a Living Will in place, then you may have specified whether you want a Do Not Resuscitate Order. That way, medical professionals have their answer – and the decision has been made by you, not your family.

Living Wills therefore give you more agency over your end-of-life care, or indeed any medical care that you may require in the future. Issues such as whether to switch off a life support machine are major decisions. You may have very strong feelings as to what you would like to happen, should this situation ever arise. But without a Living Will, the choice is taken out of your hands and placed into the hands of doctors and relatives. This could lead to circumstances that you would never have chosen for yourself.

The legalities of Living Wills

Living Wills are also known as an Advance Healthcare Directives. They only take effect once you have become incapacitated, meaning that you cannot make or communicate treatment decisions for yourself. They are governed under Irish law by the Assisted Decision-Making (Capacity) Act 2015. The Act has yet to be commenced, so Living Wills are not legally binding.

Even so, an Advance Healthcare Directive should be enforced if the terms are relevant to the circumstances you face. For example, if you state that you do not want to be resuscitated and you later require resuscitation, the terms of your Living Will should be relied upon. Also, you have effectively withdrawn your consent to be resuscitated, meaning doctors should not proceed with treatment.

However, there are times when a Living Will may not be enforced, including if:

  • It goes against a doctor’s clinical decision
  • It does not account for the exact circumstances
  • You request a specific treatment which is unnecessary
  • Circumstances arise which were not anticipated when it was drawn up

What does a Living Will cover?

A Living Will is tailor-made to you and your preferences. It is entirely up to you what to include in your Living Will, so long as it is legal. Typically, a Living Will covers:

  • What treatment you do not want to receive, should you lose capacity and be unable to communicate by any means
  • What treatment you do want to receive, should you lose capacity and be unable to communicate by any means
  • A designated healthcare representative
  • Other wishes

Let’s look at each of these in turn.

Treatment you do not want to receive

Most Living Wills are primarily concerned with the type of treatment you would not want to receive, if you are incapacitated. Many people fear the idea of falling into a permanent vegetative state or requiring round-the-clock care. A Living Will allows you to ask for life-sustaining treatment to be withdrawn, even if it means that you will die as a result.

You can be very specific with your wishes. For instance, you can state that you do not want to be resuscitated under any circumstance, or you can state that you only want to be resuscitated if doctors believe it may be medically beneficial. You can also ask for life-sustaining treatment to be withdrawn if there is no prospect for your recovery. Or you can refuse certain types of treatment that may be used to keep you alive, such as dialysis or being fed artificially.

Treatment you do want to receive

On the other hand, you may want every attempt to be made to keep you alive. You can therefore request to receive all medical treatments healthcare professionals deem necessary. These wishes are not legally binding but they must be taken into consideration, if they are relevant to your condition.

It is also useful for medical professionals and your relatives to know what your wishes are. A question may arise as to whether to provide life-sustaining treatment. If you have expressed that you would like to be resuscitated and/or receive life-sustaining treatment, then it provides clarity to the situation. Doctors can take this into consideration when deciding how to treat you.

A designated healthcare representative

A designated healthcare representative is responsible for conveying your wishes, as set out in your Living Will. You do not have to appoint a designated healthcare representative if you do not want to. If you do, you can give them the power to interpret and enforce your wishes. You can also give them the power to accept or refuse life-sustaining treatment on your behalf. However, their actions must be guided by the terms of your Living Will.

Your designated healthcare representative must be at least 18 years old. It will probably be your spouse, child or other close family member or friend. He/she must not care for you in a professional capacity.

Other wishes

You can also include other wishes and preferences in your Living Will. For example, you can confirm whether you want your organs to be donated after your death. You can also say where you would like to spend your final days, be it at home or in a hospice. Again, these wishes may not be upheld if it is impractical to do so. However, it can be useful to know what your preference would be, if the option is available.

What cannot be included in a Living Will?

Your Living Will cannot include:

  • Anything that is illegal
  • Details on how you want your estate to be distributed
  • Other wishes, such as legal guardians for your children

Assisted suicide is illegal in Ireland. While you can refuse life-sustaining treatment, you cannot ask doctors to end your life through positive measures. This means you cannot request a lethal injection, for example.

A Living Will also cannot cover the wishes you want to be fulfilled after your death. To do this, you need to make a Will, known in legal terminology as a ‘basic Will’ or a ‘simple Will’. A Will allows you to decide how your assets should be distributed after your death. It also enables you to name executors and legal guardians for your children, and to confirm your funeral preferences.

Who can make a Living Will?

You can make a Living Will if you:

  • Are aged 18 or over, and
  • Have mental capacity

Mental capacity means that you have the ability to understand, retain, use and weigh up information when making a decision. If you make a Living Will in your later years, or after you have been diagnosed with a condition that affects your mental faculties, then your capacity may be called into question. The validity of your Living Will may then be in doubt. To counter such potential problems, you can ask a doctor to verify your mental capacity when you make your Living Will.

How to make a Living Will

The decision to make a Living Will should be entirely yours. It is by no means a requirement and no one should pressure you into making one.

If you do decide that you would like to make a Living Will, you should ask a solicitor to draw a statement up on your behalf. This will be tailored to you and your individual wishes. A solicitor can discuss the various options with you, including the relevant terms and leaving out anything you do not want to specify.

Once you are satisfied with the terms of your Living Will, you must sign it in the presence of two witnesses. These witnesses must be at least 18 years old. One of them should be someone other than a family member. Your witnesses must then sign the document in front of you.

You can change or revoke your Living Will at any point during your lifetime, so long as you still have mental capacity. If you make any changes, they will need to be witnessed.

Living Will vs Enduring Powers of Attorney

If you make a Living Will, you may also want to consider making an Enduring Power of Attorney (EPA). An EPA allows you to nominate an attorney who will make personal care decisions on your behalf, should you lose mental capacity in the future. You can select what decision-making powers your attorney has. This might include the authority to decide where you live and who you see.

However, an EPA cannot deal with healthcare decisions. This differs to some other countries, where attorneys can decide what type of medical treatment the donor receives. This is not applicable in Ireland, as you cannot give anyone else the legal right to make decisions about your healthcare. That is why Living Wills are so useful. They allow you to appoint a designated healthcare representative who can verbalise your wishes regarding medical treatment, when you are no longer able to do so.

Do I need a solicitor to make a Living Will?

In theory, you do not need a solicitor to make a Living Will. So long as the Living Will meets the necessary formalities, it will be considered valid. This means it must be signed and witnessed, and you must have been of sound mind when you made it.

However, it is highly recommended that you consult with a solicitor. The terms of a Living Will are literally a matter of life and death. These are major decisions and a legal professional can advise you on the implications of your choices. A solicitor can also word your Living Will to ensure your wishes are clearly expressed, removing any ambiguity. This is important, because in the event that you do become unable to communicate your wishes, the directive will be the only guidance available to doctors and relatives.

If you would like to speak to a solicitor about making a Living Will, please contact us at info@gibsonandassociates.ie

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