Can Compulsory Living Wills Be Enforced?

A High Court senior judge has recently suggested that living wills should be compulsory, to set out a statement of wishes in the event of an incapacitating illnesses.

Mr Justice Francis said: “It should be compulsory that we all have to make living wills because these cases would be resolved much more easily.

“We all ought to be encouraged to tackle these issues.

“If there was some sort of campaign to educate people about these sort of things I think people would actually do something about it.”

Here Annabelle Vaughan, Partner and Head of Court of Protection & Wills, Trusts & Probate, at Coffin Mew, comments:

“The question of living wills highlights a complex area of law, where the known wishes and feelings of individuals are put at the centre of decision making. A foreseeable problem with compulsory living wills is that individuals have a right to change their mind – there are bound to be disputes as to whether the recorded wishes are still current at the point where a decision needs to be made.
 
“On a practical level, it is difficult to envisage how compulsory living wills would be enforced and who would bear the cost of introducing any mandatory system. The current safeguards for individuals with Lasting Powers of Attorney have not eliminated financial abuse by attorneys; a far more robust system would be needed for dealing with something as fundamental as death. 
 
“What one person would find tolerable if they needed life sustaining treatment may be vastly different from another. An arbitrary system would risk generalising the point at which people wish their lives to be ended. 
 
“As Mr Justice Francis says, education is key. Recent cases such as Briggs show that knowing what a person would have wanted is compelling evidence. People should be actively encouraged to have these difficult conversations with their families, before the opportunity ceases to exist.”