Preparing a Living Will: The Top Things You Need to Consider

Martin Beames, Solicitor and Partner at ODT Solicitors, stresses the importance of preparing a living will. He says: “My advice would always be to seek professional legal help with drafting something as important as an advance decision. It is your decision, very personal to you. Don’t take a chance and try to draft it yourself. It’s too important to leave to chance – speak to an expert.”

He speaks more with us on drafting living wills and who to appoint as a Power of Attorney.

Martin Beames, Solicitor and Partner at ODT Solicitors, stresses the importance of preparing a living will. He says: “My advice would always be to seek professional legal help with drafting something as important as an advance decision. It is your decision, very personal to you. Don’t take a chance and try to draft it yourself. It’s too important to leave to chance – speak to an expert.”

He speaks more with us on drafting living wills and who to appoint as a Power of Attorney.

When preparing a living will, what three things should people consider?

When considering setting up a living will you should always think about:

• Are there any specific treatments that you would want to refuse or allow; for example, a Jehovah’s Witness may have religious grounds for refusing to accept a blood transfusion, but may be quite happy to accept a less invasive treatment.
• You should also consider whether your decision to refuse a certain treatment would still apply if that refusal were to result in your death. Facing death head-on has a tendency to sharpen an individual’s focus.
• You should also make sure that all those who may have something to do with your care know that you have made an advance decision. You should tell your GP, and ensure a copy is kept with any hospital or other medical notes. Also, make sure your family know what you want to happen.

When do complications arise and what can be done to avoid this?

The most obvious complication will be where a person has not told their family. The medical professionals may well be doing their jobs and following your advance decision, but when the family then turn up at the hospital, the arguments that can develop are not to be underestimated. Even if the family agree, they will still be left with a horrible feeling that their loved one could not trust them with such a decision.

What should clients consider when appointing Powers of Attorney? In your opinion, what are the advantages and disadvantages of this?

Generally, when setting up a Power of Attorney, people should appoint their close family. These are the people who will generally know them best and accept their duty to act in the best interests of the person for whom they are acting. Problems arise when family do not agree with what is acting in a person’s best interests. If you have two children and appoint both, then you need to be sure that they will both follow your wishes and agree what is in your best interests. If you cannot find a way through such disagreements, then consider appointing someone completely independent. A family friend may be the answer, but it can be a significant imposition. Appointing a lawyer may be the solution to the question of independence, but such an appointment means a lengthy discussion and paying the legal fees of the lawyer for being involved in your affairs. Many lawyers will not accept instructions to act on a personal welfare basis, and will only agree to act on financial affairs matters

As Thought Leader in your field, are there any changes you would advocate for that would benefit your clients?

The whole law surrounding advance decisions needs to be made clearer. There is no specific form to be used and no standard wording. The internet is a place full of dangers and contradictory advice as to how to set up such a document and who to tell. The whole status of an advance decision needs to be codified, to ensure that those who want to set them up can do so easily. By the nature of such a document, it is only going to be relevant when you are no longer in a position to communicate your wishes yourself. It is important that if you are going to prepare such a document, you can be confident that what you have drafted will work.

Martin Beames

Partner

Pavilion View, 19 New Road, Brighton BN1 1UF

mbeames@odt.co.uk

www.odt.co.uk

Direct line: 01273 956214

Reception: 01273 710712

Fax: 01273 221584

Martin is a Solicitor with 20 years’ experience across the legal profession working for law firms and for a large High Street bank. He specializes in Inheritance Tax planning and the preparation of Wills, the setting up and administration of trusts, the creation and operation of Powers of Attorney, the administration of estates after people have died and the obtaining and dealing with Probate, and related matters.