‘Living wills’ and the dangers of doing it yourself

Only a couple of weeks have passed since various news pages published reports calling for a review of the will making profession. This followed the findings of the Legal Services Consumer Panel which had discovered that large numbers of wills contain simple mistakes or lack clarity, especially when made at home or when drafted by unregulated will writers.

Last week in a landmark decision regarding ‘living wills’, the Court of Protection also reiterated the need for clarity. A ‘living will’ as it is generally known, legally allows someone to put into writing their advance decision to refuse life saving treatment, effectively allowing them to choose to die.

The case in question, the first of its kind heard before the Court of Protection, involved a 67 year old man with motor neurone disease, referred to as XB. XB’s wife found a template for a living will on the internet and in November 2011 XB formalised his wish to refuse life saving treatment. He did this in front of his wife, a doctor, a social worker and a carer, communicating his consent with only his eye movements.

The case came before the Court after another carer questioned the validity of XB’s consent. The carer’s employer, an NHS trust, then applied to the Court for further clarification upon the validity of the advance decision. It was also unclear from the document itself whether the advance decision was intended to expire in May 2012.

In her judgement, after confirming her satisfaction that XB had capacity to validly make his advance decision, Mrs Justice Theis stressed that advance decision documents should be drafted with absolute clarity. She also commented that organisations offering templates for living wills ought to consider reviewing them.

In an area so groundbreaking and in light of the recent findings of the Legal Services Consumer Panel, it is advisable that people do not simply search for templates for living wills online. Anyone looking to make a will or an advance decision should seek guidance from a regulated professional in order to have the best opportunity for creating a valid document.

Should you wish to make a will and / or an advance decision, or would like more information, please do not hesitate to contact the Private Client Department at Blacks – 0113 2070000

David Ward DWard@LawBlacks.com
Trainee Solicitor
Private Client Department
Blacks Solicitors LLP

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