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How to Create a Living Will

A living will allows the primary party, called the "principal", to specify his or her directions regarding future medical treatment in the event that the principal becomes incapacitated or otherwise incapable of expressing his or her wishes. It also allows the principal to clarify his or her preferences regarding appropriate treatment and to nominate specific people, whom the principal trusts, to give further clarity as to his or her desires when the principal becomes incapacitated. In order to sign this document, the principal must not be lacking capacity.

The living will is broken into two parts. The first part is the “advance decision” (or “advance directive” in Scotland), which declares which treatments and under which circumstances the principal chooses to refuse medical intervention. In this section, you can only state which treatments are refused; you cannot request any specific treatments or medications. The second part is known as an "advance statement”. Although there is nothing legally binding within the advance statement, it allows medical practitioners and the courts to understand the principal's wishes and beliefs to a greater extent.

Preparation of the Living Will

It is important to complete this document as clearly and succinctly as possible, especially in regards to the refusal of medical treatment. The principal must be clear as to the specific treatments and medications he or she is refusing and under which circumstances they are being rejected. Even though it is not compulsory, it is recommended that the principal discusses this document with a medical health worker or general practitioner at a minimum, and also with a friend or family member if possible.

In order to execute this document, the principal should sign it in front of a witness, who will also need to sign. The witness preferably should not be an immediate family member and should in no way benefit from the principal's death. For example, the witness should not be a beneficiary of the principal's will nor a co-owner of property.

Post-Completion of the Living Will

After the document has been completed and fully executed, copies should be deposited with medical professionals, friends or family so that should the document ever be needed, the right people have copies. Also, since the document deals with incredibly vital matters, the principal should review it regularly, signing where indicated, to ensure that the document still accurately represents his or her wishes.

Estate Planning

A living will is often used as part of an estate plan. Estate planning documents may also include a last will and testament and power of attorney.

Important Note about Scotland

Unlike England and Wales, advance directives in Scotland do not have any statutory footing and therefore are not technically considered legally binding documents. However, due to the principles set out in the Adults with Incapacity (Scotland) Act 2000, any adult who no longer has physical or mental capacity to express their wishes should have his or her prior-stated wishes taken into consideration when deciding medical treatment. Therefore, this document will help clarify the principal's medical wishes for the treating medical professionals and the courts.