Are living wills binding?

Maeve is having trouble getting her family to appreciate her wishes should she fall seriously ill and wonders if creating a living will is her best course of action.

Q. Maeve

I keep trying to tell my family about what I want to happen should I become incapacitated, but they simply keep saying that it won’t happen and telling me not to be so morbid. I would hate to simply be left to fade away and I think it’s important that I get them to understand my wishes are valid and important. A friend has suggested I write a living will but I’m not sure about the legal status of such a document? Will it ensure I get my way?

A.

One of the most important documents that you may ever compile is your last will and testament. However, you don’t need to be dead for a will to be an accurate way to express your wishes.

Most of us will have muttered the words, “over my dead body” or “I would hate to live like that” but as you’ve experience, those around you don’t always take your wishes seriously? Mental illness, severely debilitating physical illness or a serious accident can all have an impact on how your affairs are managed and how you are able to live your life. People who suffer from such illness are often aware of their surroundings and treatments but because they are unable to communicate effectively, their wishes go unheard.

Ensuring that you spend your last days, months or years on this mortal earth, as you would like is simple, if you consider an advanced directive or living will. The directive can include medications which have made you sick in the past, treatments you don’t want to have and things which need to be looked after, such as feeding your pets, servicing your debts and looking after your house.

Living wills are not legally binding and can be challenged but they do leave those around you in no doubt as to your wishes. For more information on living wills, visit the Australian Human Rights Commission.

If you are interested in having a water-tight legal document, then you should consult a solicitor about an enduring power of attorney, which, when drafted and witnessed correctly, will ensure your wishes are carried out to the letter of the law.

Of course, it is important that your family and next of kin are aware that such documents exist. Perhaps you could take aside your oldest child, or a sibling and let them know where your documents can be found, and that you are insistent that your wishes are followed.

 

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