What Is A Personal Directive (Living Will)?



The Personal Directive (commonly referred to as the Living Will) is a legal document which appoints an individual to make decisions on your behalf with respect to your personal care and medical care and to carry out your decisions with respect to important medical decisions when you are no longer able to do so. The Personal Directive gives you the power to appoint an individual, while you are still alive and healthy, whom you can trust to make very personal decisions on your behalf, for example, where you might live when you are very ill and where you will live out the end stages of your life. The Personal Directive also, very importantly, set outs your wishes with respect to the type of medical treatment you receive under certain situations. This is the document that allows you to set out your wishes regarding whether treatment at the end stages of life, i.e., no heroic measures to be taken, to be left to die by natural means but kept free of pain, etc.

There are two types of Personal Directives. One is an “immediate” Personal Directive and the other is a “springing” Personal Directive. The “immediate” Personal Directive is just that; it comes into force and effect upon the signing of it. The “springing” Personal Directive does not take force and effect until such time as a written declaration is provided by two medical practitioners verifying that you do not have the mental capacity to make reasonable judgments about your personal care and medical care, or upon your “agent” – the individual you have appointed in your Personal Directive – has consulted with your medical practitioner and consequently signs a written declaration stating that you are no longer mentally capable of making personal and/or health decisions. One other important aspect to the Personal Directive is a declaration as to who shall be appointed guardian of your minor children in the event the Personal Directive comes into force and effect.

As with a Will, and like the Enduring Power of Attorney, the Personal Directive must be properly drafted and properly executed. Rules also apply to the Enduring Power of Attorney and Personal Directive with respect to who can witness. Failure to execute any of these documents in the proper and accepted form can and often does result in them being declared null and void. The result is an application to the Court which as we have noted is costly, time consuming and not always in your best interests nor according to your wishes.