Living Wills

An Advance Directive, or Living Will, is a way of setting out your greatest hopes and fears for the end of your life – and to make a clear statement about the care and interventions that you would or would not want to happen if there is no prospect of recovery.

A Living Will expresses the circumstances under which you would refuse particular treatments. For example, you may decide that if you were suffering with an incurable condition you do not want to be kept alive through a feeding tube. Or, if your condition is not getting better or is worsening while being fed via a tube or drip, you may choose to stop those treatments.

A Living Will or Advance Directive cannot request specific treatments; it can only express your desire to refuse treatments in particular circumstances. It is not about assisted dying, but about maintaining as much control as possible over the manner of your dying.

In Scotland, you have the legal right to refuse medical treatment. By making a Living Will, you are exercising that right while you have the mental and physical capacity to do so – but for a potential future scenario.

A dispute over a Living Will has not been tested by the Scottish courts, but a Living Will is likely to be recognised and acted upon by your medical team.

When making a Living Will, you should inform a range of relevant people about your wishes so that, if the circumstances arise, a copy of your Living Will can easily be located and given to your medical team. These may include:

• Your healthcare professionals (a copy can be given to your GP or medical team)
• Your family and friends
• Your Welfare Attorney, if you have one

Your solicitor will also keep a copy of your Advance Directive on file for future reference.

Living Wills or Advance Directives can be expressed in written documentation, signed by you, and the important thing is that they capture your end-of-life wishes. There is no right or wrong way of doing that. However, for your Living Will to be effective and stand up to legal scrutiny, it is advised that you put together your Living Will with the support of a solicitor.

Our team of Edinburgh solicitors will help you to draw up a Living Will that is clear about the conditions under which you would refuse medical treatment and confirms that you are of sound mind at the time of making your Living Will.

For an Advance Directive or Living Will to be valid, it must meet these criteria:

• You must be aged 16 or over at the time of signing
• You must have the mental capacity to make decisions, i.e. you must be aware of what you are signing and the implications it has and not be pressured into your decision by a third party
• The circumstances in which you find yourself must be specified in your Living Will in order for your choices to be followed
• Your Living Will must be signed by you and witnessed by someone else

A verbal Living Will can be used to make most healthcare decisions, but may result in confusion or lack of clarity later down the line, should your circumstances change. We would always recommend drawing up a written Advance Directive to avoid confusion and ensure your wishes are followed.

Advance Directive, or Living Will, is the term usually used in Scotland. In England and Wales, Living Wills are referred to as Advance Decisions to Refuse Treatment (ADRT).

Both forms have the same fundamental purpose: to express your healthcare and treatment decisions ahead of time, should you find yourself in circumstances where you are unable to make those decisions in the moment.

Advance Directives or Living Wills can be made verbally, however it is always recommended that your choices are expressed via a written statement.

Verbal Living Wills have the potential to be unclear, forgotten about and difficult to trace back to you being the source, while written Living Wills drawn up by a solicitor are better able to be entirely clear and can be made available to multiple relevant individuals to ensure your wishes are followed.

In most cases, a Living Will can be arranged with Allingham & Co’s solicitors for £150 + VAT.