Help to make an Advance Decision (Living Will)

An Advance Decision, often called an Advance Directive or a Living Will, is a legally binding method that can be used to refuse some or all forms of medical intervention, including life-sustaining or life-prolonging treatment, in the event that you should lose mental capacity in the future.

Advance Decisions can be complex because they must be very precise and specific in order to be valid. If you’d like advice on making a Living Will, our expert Solicitors can help.

Under the Mental Capacity Act 2005, anyone over 18 who has the mental capacity to do so can make an Advance Decision. A valid Advance Decision is equivalent to the refusal of treatment by someone who has the mental capacity to decide for themselves, which means that if you refuse treatment through an Advance Decision, your doctors must in most circumstances respect your wishes or risk criminal charges. Our specialist solicitors can help you to draw up an Advance Decision document which will allow you to express your choice, even when you have lost the mental capacity to do so.

When drafting your Advance Decision, or Living Will, we will do our best to allow for future developments in the wording of the document. For example, you may wish to refuse any treatments currently available for a particular condition, but make allowances for the introduction of new treatments which may be developed in the future.

What does an Advance Decision include?

In order to be legally binding, an Advance Decision should:

  • Specify treatment you wish to refuse
  • Specify the circumstances in which you wish to refuse the treatment
  • Not have been modified since it was made (this applies to both verbal and written modifications)
  • Have been made without the influence or harassment of someone else
  • If you wish to refuse life-sustaining treatment, your Advance Decision must be in writing and be signed and witnessed. Refusals of life-sustaining treatment should also expressly state that the decision stands ‘even if life is at risk’.

Does an Advance Decision have to be in writing?

A witnessed verbal Advance Decision is no less legally binding than a written one, however a written Advance Decision will ensure that there is no doubt about your wishes regarding your treatment. If you wish to refuse life-sustaining treatment, you must put your Advance Decision in writing, and it must be signed and witnessed.

Are there things an Advance Decision can’t be used for?

There are some limitations to Advance Decisions. You cannot use an Advance Decision to name someone to make decisions about your treatment on your behalf. An Advance Decision can’t be used to request that your life be ended. If you are unsure about the validity of any request you would like to include in an Advance Decision, our solicitors can advise you.

Could an Advance Decision conflict with a Lasting Power of Attorney for Health and Welfare?

If you register a Health and Welfare Lasting Power of Attorney (LPA), this will give your Attorney the authority to make decisions about medical treatment on your behalf. However, your Lasting Power of Attorney will not conflict with any Advance Decision you make. An Advance Decision overrides a Lasting Power of Attorney except in specific cases where the Lasting Power of Attorney was drawn up after the Advance Decision and specifically gives the Attorney authority to override the Advance Decision.

Are there any circumstances where a doctor would not follow an Advance Decision?

In certain circumstances, an Advance Decision may not be followed by doctors. These include:

  • Cases where the Advance Decision does not make it sufficiently clear what should happen.
  • Where current circumstances (for example a medical development) would have affected the person’s decision.
  • Where the person has been treated under the Mental Health Act.
  • Where the person has acted in a way which is inconsistent with the Advance Decision and which may affect its validity – for example where the person’s religious faith has changed in some way.
  • Where there is a doubt about the validity of an Advance Decision and the case has therefore been referred to the Court, doctors are permitted to treat the patient based on their best professional judgement.

Advance Decision case study: The Court of Protection case of ‘M’

The case of ‘M’ in the Court of Protection highlighted the importance of having a formal, written advance decision. The family of M, a 53-year-old woman diagnosed as minimally conscious, applied for M’s artificial nutrition and hydration to be stopped. They believed that M would not want to live a life dependent on others, and that her life had no dignity or pleasure.The September 2011 judgment in the case was that M’s life did have some small pleasures and that she could not be allowed to die through the withdrawal of life-sustaining treatment. Crucially, in his judgment Mr Justice Baker stated that had M made a formal advance decision refusing such treatment in her current circumstances, the Court would have abided by her wishes.

Would you like advice on Advance Decisions?

If you are considering making an Advance Decision or Living Will, contact Catrin Lloyd for advice on 0800 138 0458.

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