Should writing a living will before you get old be compulsory? A High Court judge thinks so, and specialist lawyers have added their support to his suggestion.

An article in the Daily Mirror, centred on a recent hearing at the Court of Protection concerning the treatment of a pensioner with dementia in a minimally conscious state. Judge Justice Francis is based in the Family Division of the High Court in London. He also oversees hearings in the Court of Protection.

The judge said he thought a campaign to educate people about living wills would be a good idea – an awareness-raising exercise along the same lines as organ donation campaigns. A living will sets out what a person wants to happen to them if they contract a serious, incapacitating illness.

A living will doesn’t have any legal meaning, but typically refers to either an advance statement or decision.

An advance statement sets out how a person would like to be looked after and cared for and can be used if someone uses the ability to make or communicate decisions. An advance decision is where someone formalises their wishes in regards to future medical treatment and whether they want to receive it or not. It’s legally binding, so those caring for the person must follow their instructions, and it allows someone to refuse treatment, even if doing so will result in their death.

The case in question related to The Royal Wolverhampton NHS Trust, who had asked for a ruling on the treatment of an elderly man in their care. Doctors at the hospital wanted to put a feeding tube into his stomach but needed the judge to rule on whether this would be lawful.

Lawyers representing the man did not object, and the judge concluded that the pensioner couldn’t make the decision. However, the man’s family had been in conflict with the hospital over his treatment and had made negligence complaints. They did not attend the hearing.

The judge described the case as “very sad”, and that there were plenty of these kind of cases. If patients, while they still had the capacity to do so, made a living will, then the courts might not need to get involved so often.

Specialist law firms agreed with the judge, telling the Mirror such a campaign was necessary. James Beresford of Slater and Gordon said no-one liked to think about getting ill or dying, but it would be much kinder for those left to look after us if we had already made our wishes clear.

He added that living wills were not the only option, as a health and welfare lasting power of attorney would allow people to leave more detailed instructions on what they wanted to happen to them in the event that they no longer had mental capacity.

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