A living will is sometimes called an advance care directive. Both names essentially refer to the same thing. These documents are called living wills because, unlike ordinary wills, they provide for events that occur while you are still alive. A normal will only applies after you die. The name "advance care directive" is given because it is a written record of your wishes, made in advance of your suffering ill health or an injury, in which you give a direction about the care that you wish, or do not wish, to receive.
A Living will or advance care directive should not be confused with an advanced care plan. Many medical institutions encourage patients who are seriously ill to fill out an advanced care plan form. The purpose of that is to describe the types of care that a patient wants, and to record whether the patient has any religious beliefs, what things the patient regards as important in their remaining life and other things that will help the medical institution to care well for the patient. Sometimes, care plans are also used to record what the patient does not want, and to that extent, the care plan can overlap with, and repeat the provision of a living will.
A Living will provides a record of your wishes about the medical treatment that you prefer, so that your family and doctors have a statement of your preferences when you have become unable to communicate what you want, due to illness or injury.
There is presently no guarantee in the law that wishes expressed in a living will must be followed. However, the record of the wishes contained in a living will is likely to be of great help to family members and doctors when they are faced with difficult decisions about whether to provide or continue to provide medical care, or to allow a terminally ill person to die.
Anyone who is at least 18 years old can make a living will.
If it is later proved to a court that a person who made a living will, was not at the time, competent to manage his or her affairs, the court can decide whether the living will made by that person is valid or not.
If there is any doubt about your competence to make a living will, for example, if you are currently suffering from a physical or mental disability that might affect your ability to make decisions, you would be wise to take medical advice, and to have a proper record made of any advice given. If the advice is that you are not competent, then it is best to postpone the making of the living will until you have medical advice that you are well enough to do so.
If you are not presently suffering from any illness, and if you have a firm opinion about the extent of care that you wish to receive, then the place to record that is in a living will. However, many people are content for medical treatment decisions to be made by their doctors and family. In either case, the living will is a useful way for you to record your preferences and wishes.
A living will does not permit your family or your doctor to terminate your life. The law does not allow euthanasia.
Families and doctors who are faced with decisions concerning prolonging or shortening the lives of seriously ill people have very difficult decisions to make. The law is at one level very clear. A doctor may not give medication to a patient which will terminate the patient's life. The doctor may also not give mediation to a patient knowing that the patient will use the medication to terminate his or her own life. At another level, things are not so clear. Medication which is given for proper therapeutic or pain relieving purposes may have the incidental effect of shortening the life of the person to whom it is given. It is not always clear what course of action will be legal and what will be illegal.
These are hard decisions, in some cases involving people who wish to die or who wish to be relieved of pain and who are not concerned if their life is shortened. Doctors and family face the extreme possibility of prosecution for a crime, if they act to end the life of such a person. Knowing that the patient did not wish to have their life extended in these circumstances and having a written document to that effect can be of real assistance. It does not, however, guarantee that there will be no problems. There is a wide range of views in the community about what is moral and about what should be legal. A living will does not solve all of those problems.
The law does not prescribe how a living will must be made. The LawOnline system provides a document in a form that is to be signed by you in the presence of two witnesses. It provides a written record of who your witnesses were. If your competence to make the living will is ever called into question, then there is a record of who the two witnesses were, so that they may be questioned about your competence at the time, and about whether you seemed to them to know what you were doing.
You can revoke or cancel your living will at any time by:
(a) making a new living will;
(b) declaring in writing that you revoke your existing living will;
(c) destroying your living will with the intention of revoking it. The simplest and most effective way to do this is to tear it into pieces and throw it away or burn it;
(d) otherwise showing an intention to revoke it, for example by writing across the living will that it is revoked.
You should store your will in a safe place, where it is not likely to be lost or damaged. Remember that paper is subject to decay from damp, mould and insect attack.
You should tell your family members or a friend where your living will is stored. If you have appointed an enduring guardian, it is a good idea to give a copy of the document to him or her, and to tell your guardian where you have stored the signed original.
The advice in these pages was last reviewed on and is correct as at 17 October 2016.
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