Have you thought about making a Living Will?

January 28, 2021
Sick lady in hospital bed
end of life planning
anticipate life
supporting others
Bernadette Fulton

First of all, what exactly is a Living Will?

A Living Will is also known as an Advance Health Care Directive, Advance Directive, or Health Direction. The terminology differs in each State. It is a form of end of life planning or estate planning. A Living Will is a written legal document.

In a Living Will you can set out your wishes in relation to your future healthcare and medical treatment in circumstances where you become seriously ill or injured.  Or you may be unconscious or in a coma as a result of accident or medical trauma. Perhaps you may be suffering from medical incapacity and you are unable to make these decisions yourself. Or express informed consent.

In cases such as these, a Living Will is a way of protecting yourself because it sets out your wishes in advance.

You can use this document to record in advance your refusal to undergo specific future medical procedures. You can note medical treatments you want or don’t want, to be used to prolong your life, if you cannot talk with the doctors yourself.

Also you can use the document to note your wishes in relation to other medical procedures or medications, such as surgery, resuscitation, pain management or organ donation.

It lets others know your personal choices about end of life medical treatment. And doctors, other health professionals and family members must follow the terms of your Living Will or Advance Care Directive. They do not have authority to ignore or override it.

What are the legal requirements for a Living Will?

The laws which apply vary depending on the legal jurisdiction you live in. And in Australia, the rules vary from state to state but are generally similar. So make sure to get legal advice on the requirements which apply to you.

To be effective and legally enforceable you must make your Living Will voluntarily. And you must fully understand its terms and effect. So in general terms to be legally valid it must be:

  • made voluntarily without coercion
  • made by an adult who has decision-making capacity; and
  • specific enough to apply to the situation that later arises.

What is the difference between a Will and a Living Will?

The main difference between a Will and a Living Will is the time when it comes into effect.

Your Will takes legal effect upon your death. But your Living Will comes into effect should you become incapacitated. Its purpose is to provide instructions at such time to your family and doctors about what medical treatment you do and don't wish to have.

Can I change or revoke my Living Will?

Yes, you can always change your Living Will for any reason, at any time. And you can always revoke it (cancel or withdraw ) by legally revoking it.

But to do this you will have to sign a formal revocation document. Not just destroy or tear up the Living Will you have made. Because it remains a legally binding document until it is formally revoked. So it is important to obtain legal advice to ensure you do this correctly. And remember that you are the only person who can change or revoke your Living Will.

For more information and assistance on other aspects of end of life planning, visit us at Anticipate Life.