Living wills and advance decisions

29 April 2019 | Applicable law: England and Wales

What is a living will?

A living will is a document in which a person, whilst still mentally competent, gives directions as to what should happen if and when he or she becomes incapable of making decisions about his or her own healthcare. A living will can only be used when the maker has lost mental capacity.

The directions often includes provisions relating to whether or not life-sustaining treatment should be put in place or withdrawn, should the person become terminally ill or incapable.

Is an advance directive the same thing?

A living will is sometimes referred to as an advance decision or advance directive. Strictly speaking, an advance decision is a statutory term, referring to a refusal in advance of future medical treatment. An advance directive is usually used in the same way, but it may request as well as refuse treatment. A living will can incorporate advance decisions and/or directives, as well as expressing more general wishes and preferences.

What form do living wills and advance decisions take?

Living Wills can take various forms, but most include one or more of the following:

  • An instruction directive which can be either a request for treatment (“Please provide treatment X if I am in condition Y”) or a refusal of treatment (“I refuse to have treatment X if I am in condition Y").

  • A general statement of the individual's beliefs and values in various areas. This type of living will does not contain a direction, but attempts to give a biographical portrait of the individual as an aid to deciding what he or she would want.

There is no specified form of advance decision. In some circumstances, one can be made orally, although a written decision is generally preferable and is a requirement in respect of the refusal of life-sustaining treatment.

What is the legal basis of an advance decision?

The Mental Capacity Act 2005 (MCA 2005) came into force on 1 October 2007 and confirmed that a person, while competent, may validly refuse treatment in the event of future incapacity. The right to request treatment is not, however, recognised by MCA 2005 or in law generally.

When is an advance decision valid?

An advance decision will be valid if it is made by a mentally competent adult, who is able to understand and retain the information relevant to the decision and weigh it up before making a choice. The individual must make a clear and independent decision with an understanding of the situation in which they anticipate that their decision will operate and a broad understanding of the consequences of refusing treatment.

When does an advance decision become invalid?

An advance decision is not valid if the person has withdrawn the decision at a time when they had capacity to do so, or has done anything else that is clearly inconsistent with the advance decision. Furthermore, if a Lasting Power of Attorney for health and welfare is later made and registered which gives an attorney the power to give or refuse consent to any treatment covered by the advance decision, this will supersede the advance decision.

An advance decision will not apply to treatment or circumstances which are not specified in the decision, or if there is reason to believe that the person's decision would have been different had they known of the circumstances as they are when the treatment is required.

Are there any restrictions on the terms of a valid advance decision?

An advance decision which includes directions related to end of life-sustaining treatment must be made in writing and signed by the person to whom it applies (or by another person in the relevant person's presence and at their direction) and witnessed.

What if I want to change my advance decision later?

An advance decision may be withdrawn or altered at any time, as long as the person to whom it applies has the capacity to do this. A withdrawal or alteration need not be in writing, for example, if the individual's conduct is inconsistent with the advance decision.

How is my advance decision applied by my doctors?

Doctors will follow the basic principles of MCA 2005 which is that a person is assumed to have capacity unless it is established that capacity no longer exists. The Code of Practice which accompanies MCA 2005 makes it clear that health care professionals should start from the assumption that a person who has made an advance decision had the capacity to make it, unless they are aware of reasonable grounds to doubt that the person had the capacity to make the advance decision at the time.

Doctors will not be liable for treating a person unless they are aware of an existing, valid and applicable advance decision, or for withholding treatment if they reasonably believe that a valid and applicable advance decision does exist. Treatment will often therefore be given in an emergency scenario where doctors are unaware that an advance decision exists.

Living wills are important and powerful documents and it is important that advice should be taken on their terms and operation when they are being made.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.


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