Living Wills - The Definitive Guide for New Zealanders

We outline everything you need to know to ensure your wishes are respected if and when a situation arises

Updated 19 September 2019

We all hope to be coherent right up to the point of our death, but it doesn't always happen that way. Most New Zealanders have heard about a living will, and many have thought about their end-of-life preferences. Despite this, very few people ever formalise a living will.
 
What is a Living Will?

• By definition, a Living Will, also known as an 'advance directive', is a written or oral directive in which an individual makes a choice about a future health care procedure.
• This choice is intended to be effective only when the patient is no longer competent.
• A living will allows you to provide direction regarding what happens to you if you are terminally ill or in a persistent vegetate state.
• Generally, a living will ONLY comes into force if you are receiving life-prolonging treatment. The living will lets doctors know how long you want to be kept alive for and/or what treatment and medication you want to receive. This can include your preferred pain control and requests around your comfort and specific medical procedures.
• A living will is different from an enduring power of attorney, which appoints a loved one or trusted friend to make decisions for you.
  
• ​Above everything, a living will is about ensuring your voice is heard, whatever the situation may be.  

Our living will guide covers:

• Living Will Options
• 5 Must-Know Living Will Facts
• Living Wills - Frequently Asked Questions

Know this – three common scenarios where a living will can help with end-of-life decision-making 

1. A parent slips into a coma and isn't expected to recover – a living will makes the decisions that need to be made; for example, turning off life support. It also avoids the situation of family members disagreeing about whether or not to preserve life.
2. You're in hospital after an accident and unable to speak or breathe unassisted. If your doctors see no chance of recovery, a living will states your wishes about whether or not to turn off life support.
3. You develop a terminal illness, such as cancer or Alzheimer's. If you lose the ability to speak for yourself, the living will states your wishes. This can cover preferred treatments and medication.

Planning a Living Wil
It's a serious subject, and being comfortable with deciding your end-of-life wishes can be a tough jump mentally. However, you need to think about what is right for you. To do so, you'll need to consider what medical treatments would you want (and not want) if you were unlikely to survive. It may be easier to talk to family members (husband or wife, children etc) about your wishes so that you can get some reassurance that you're making the right decision.

Living Will Options

Before we go any further, it's helpful to see what a living will covers so you can start thinking about what suits you best. Generally, there are four different options for a living will, which range from 'let me die' to 'let my doctor decide for me'. We explain the different options below:

1. "I wish to be allowed to die" - you'll state that you don't want to use life support systems if it's likely you will later die. Additional requests can include preventing life-prolonging medicine and treatment. A standard wish is to receive drugs and treatment which help pain and distress.
2. "I wish for treatment to preserve and prolong my life" – you'll state that you're happy for doctors to give you all life-prolonging treatments available, such as resuscitation and life support.
3. "I wish that my doctor shall ask for my next of kin to decide what is best" – you'll state that you wish your husband or wife, parent or child, to make the decision about what treatment you should receive.
4. "I wish that my doctor shall decide what treatment and medications I will receive" – you'll state that you give the doctor looking after you the entire responsibility to decide what medical treatment and medications you will receive.

 
If your living will states that you wish to refuse life-sustaining treatment, you must also:

• Have it in writing
• Be signed and witnessed
• Include a statement that says the living will "applies even if your life is at risk or shortened as a result of refusing treatment". This demonstrates to a doctor that you are fully aware of your decision having considered the consequences of refusing available life-sustaining treatment.

Legal Requirements - How do I make sure my living will is valid? 
​You'll need to satisfy the law by:

1. Being 18 or over - children are prohibited by law to make living wills as such decisions will be made by their parent or guardian
2. You have the capacity to make your living will - for example, you understand the consequences of refusing medical treatment or medication
3. Stating precisely what treatments you want to refuse - just stating 'I won't want any treatment' isn't specific, and the living will could be deemed invalid. If you want to refuse "all life-sustaining treatment', such as being put on a ventilator, then you'll need to state this.
4. Stating precisely the circumstances when you want to refuse treatment - for example, you will need to specify when you want (and don't want) treatment to be refused. For example, if you get dementia vs having a heart attack.

5 Must-Know Living Will Facts

Living wills can be complicated - we've outlined five must-know facts to help you make the right choice.

​A living will is important for everyone close to you

Without a living will, your family and medical professionals won't know your wishes, and your family will unlikely know what to do. Having a living will eliminates anyone else asking 'am I doing the right thing?' and the stress and anxiety that comes with that.
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​It's a good idea to speak to your doctor about your living will

• By booking an appointment with your doctor, you can discuss your wishes for any future treatment. Your doctor will explain your treatment options so that you can decide what is right for you.
• They will also answer any questions about treatment and medications, and make sure you fully understand how your living will choices will affect you. Most importantly, your doctor can help you to write your wishes so that they are clear and easily understood by other healthcare professionals.
• Know this: If your living will is not clear, it has less chance of being followed, and therefore your wishes won't be granted.

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​Being married does not give you the right to make decisions on their behalf

• If your husband or wife ends up in a coma, family members can end up in conflict with each other with regards to what is 'best' for your loved one. A spouse may think it's best to turn off life support, whereas family members may want to prolong life.
• Without a living will, a spouse does not take the place of a legal guardian. A living will always carries out your wishes and works to prevent family disputes.

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Your doctor MUST follow your living will if they are aware it exists

This means that if a healthcare professional knows that you have a valid and applicable living will, and they ignore it, they could be subject to disciplinary action.
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​You're allowed to change your mind about your living will's directives

Things change; healthcare becomes more advanced, you have a different feeling about end-of-life care, or you just want to revise what you've written in your living will. Your living will can be changed at any time - you'll need to write a new one, sign and date it, and state it replaces all other living wills that pre-date it. Experts in the field suggest reviewing your living will every two to three years to make sure it reflects your current wishes and is relevant for your current health conditions.

Living Wills - Frequently Asked Questions

It's perfectly reasonable to have questions around living wills, so we've included common queries you may have. If you think we've missed something, email our research team who can help.

Who can make a living will?

Anyone who is 'legally competent to make a healthcare choice' can make a living will. Legally competent usually means 'of sound mind' and able to make rational decisions. For example, someone with advanced dementia would likely be unable to make a living will, whereas someone with early-stage cancer could.

What does my living will cover?

Living wills should focus primarily on medical treatment and care. You can state what treatments you do or don't want, and whether you want to be resuscitated. You can also specify where you want to receive medical treatment, such as your home or hospice.

When does my living will apply?

Your living will applies only in situations you have specified. For example, if you state it applies only to illnesses relating to dementia, it won't be valid if you had a stroke or heart attack.

What is the best way to make a living will?

• ​Firstly, it's always best to write it down. While you don't need a lawyer, it can be a preferable option given the significance of what you are signing. Also, if you plan to issue an enduring power of attorney, you will definitely need a lawyer.
• To complete your living will, you will need to clearly state your preferences for treatment, then sign and date it. You should make family aware of it, and offer a copy to them so that everyone is aware of your wishes if and when the time comes. You should also give a copy to the medical professionals who you currently deal with.

Will my living will always be followed?

• ​The answer is 'it depends', as the medical doctor will need to assess whether or not your living will is valid. They will look at factors like whether or not you were competent when you signed it. Also, he or she will look at whether you made it on your own free will, and were sufficiently informed.
• Other considerations include whether the living will intended to apply to the present situation and whether it's out of date.
• In most cases, your living will be followed if no issues are raised.

What happens if I do not have a living will?

If you're impaired and are declared incompetent to consent to medical treatment, the doctor treating you will make the decision as to what treatment you will receive. In doing so, they evaluate:

1. What's in your best interests and
2. Your likely choice (i.e. what you would want if you had the capacity to make it)

Can I nominate someone in my living will to make such decisions on my behalf?

• No. If you want to do this, you will need to appoint a person to be your enduring power of attorney. If you do this, the nominated person will have the power to make medical treatment decisions on your behalf when you are not competent to do so yourself.
  
• An enduring power of attorney protects your interests much more than a living will as it goes beyond just medical decisions. If you are considering appointing an enduring power of attorney, the best practice is to consult a lawyer – our guide covers everything you need to know.

Do I need a living will if I appoint an enduring power of attorney?

A living will sets out your medical treatment wishes, whereas an enduring power of attorney appoints a loved one to make decisions on your behalf should you lose your capacity. Your living will must be attached to your enduring power of attorney document as medical professionals will need to see both.

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MoneyHub would like to thanks the New Zealand Medical Association, the Health and Disability Commissioner and Public Trust with their assistance in publishing this guide.

Related Guides

• Enduring Power of Attorney
• Wills