SPECIAL TYPES OF WILLS

It is worth knowing that there are some special types of Will where the  rules relating to standard Wills may  not apply or where there may be  some significant differences. You are  advised to take comprehensive legal  advice about special Wills.

As a rough guide, a privileged Will is  an informal Will that can be made  by serving members of the Armed  Forces and support personnel who  are either in or about to be engaged  in active military operations (this  includes war or peacekeeping  duties). A privileged Will can also  be made by a Mariner or Merchant  Seaman on a voyage. A privileged  Will can be oral or written, and  does not have to conform with  the formalities of a standard Will.  The person does not have to have  reached 18 to make a privileged Will.  The Will remains valid, even after  the operations have ended and until  the death of the maker, unless it is  revoked by the maker.

Inheritance Tax is not payable on the  estate subject to a privileged Will if  the maker’s death comes about as a result of military service.

Other special types of Wills include  mutual Wills (where two or more  Wills are made by two or more  different people, giving instructions  - based on agreement - on how their  properties are to be distributed for  the benefit of the other(s) on the  death of one) and joint Wills (where  one Will is made by two people,  usually spouses, giving instructions  on how their joint properties are to  be distributed).

Advance Decision(Living Will)

On 1st October 2007, the Mental  Capacity Act 2005 came into force,  forming the legal basis for ‘advance  decisions’ or ‘advance directives’  (formerly known as ‘Living Wills’).

An advance decision is a means of  indicating to your care providers  and loved ones whether you wish to  refuse all or some forms of medical  treatment if you were to lose mental  capacity in the future, e.g., if you  were to be put on a life support  machine or need resuscitation. This  might be relevant if you were to be  in a car accident, have a stroke or  develop dementia, for example.

You cannot use an advance decision  to insist that a particular medical  treatment is given, as this might  conflict with what the medical  professionals providing your  treatment conclude is in your best  interests.

A valid advance decision has the  same effect as a refusal of treatment  by someone who is capable of  making that decision in other words,  that treatment cannot lawfully be  given and a doctor going against  your wishes might face civil liability  or even criminal prosecution.  An advance decision to refuse  treatment is the only type of living  Will that is legally binding.

You cannot use an advance decision  to ask for your life to be ended,  to force doctors to act against  their professional judgment or to  nominate someone else to decide  what treatment you receive on your  behalf (although this can be done  via a Health & Welfare Lasting Power  of Attorney).

Also, advance decisions do not  account for the development of new  drugs or treatments so, although  you may refuse a current treatment,  you may wish to add a clause that  allows future treatments to be tried.

Some elements of an advance  decision now have to be in writing  in order to be valid, while other  elements can be communicated  verbally (although you should have  these witnessed by a senior member  of your medical team as it may be  more difficult for someone to prove  your verbal wishes).

As a rough guide, a valid advanced  decision needs to:

• Be made by someone who is 18 or over and has the capacity to make the decision
• Specify clearly the treatments to be refused
• Specify the circumstances in which a refusal would apply
• Have not been made under the harassment or influence of  anyone else
• Have not been modified either verbally or in writing since it was made

If you wish to refuse life sustaining  treatment, your advance decision  must be in writing, signed and  witnessed, and include an express  statement that the decision stands  ‘even if life is at risk’.

A doctor has the right to not act  on an advance decision if you  have done anything that is clearly  inconsistent with this decision in  terms of its validity for example,  changed religious faith since it was  made. The doctor may also feel that  you could not have anticipated your  current circumstances (i.e., a new  treatment has been introduced that  could save your life). If you are being  treated under the Mental Health  Act, a doctor may also override your  advance decision.

If you made an advance directive or  statement refusing life-sustaining  treatment before 1st October 2007,  you are advised to review it to ensure  that it meets the requirements set  out.

In Scotland, different legislation  applies to ‘advance directives’,  which are not legally enforceable  under the Adults with Incapacity  (Scotland) Act 2000. One of the  general principles of the Act states  that the wishes of the adult should  be taken into consideration when  acting or making a decision on their  behalf. To find out more, please  request a copy of the Scottish  edition of the ‘Making a Will and  Funeral Planning’ guide.

Advance Statement

In talking about advance decisions  and living Wills, you may also  come across the term, ‘Advance  Statement’. This is a general  statement of your wishes and  views, allowing you to state your  preferences about what treatment  and care you would like to receive  if you are unable to decide or  communicate these preferences in  the future.

An advance statement might  include your food beliefs (e.g.,  Kosher, vegetarian, etc.), as well  as whether you prefer to have a  bath or shower. You may also wish  to communicate your religious  beliefs and any values that you hold  particularly dear. You may also name  any individuals you would want to  be consulted about your care, if you  are unable to make decisions for  yourself.

An advance statement will help  care providers to consider your best  interests, but they are not legally  bound to follow your wishes.

If you create a Health and Welfare  Lasting Power of Attorney, you  might decide to record an advance  statement in this document, as your  attorney(s) must take this statement  into account when making any  decisions on your behalf. You can  find out more about making an  advance decision online at  www.compassionindying.org.uk.

Age UK also publishes a  comprehensive leaflet, entitled  ‘Advance decisions, advance  statements and living wills -  Factsheet 72’. You may also wish to  contact the Institute of Professional

Willwriters for more information on  issues such as ‘Health and Welfare,  Lasting Power of Attorney’ and  ‘Advanced Directives’.