Introduction
An Advance Decision, often called a living will, records the medical treatments you would want to refuse if a time comes when you cannot speak for yourself. In England and Wales it is legally binding on those treating you, provided it is valid and applies to the situation you are actually in.
It is a document about refusing treatment rather than requesting it, and it exists so that decisions about your body reflect your values rather than someone else's best guess at them.
What an Advance Decision Is
An Advance Decision is made under the Mental Capacity Act 2005. In it you set out the specific treatments you refuse and the circumstances in which that refusal applies, for example if you had an advanced and irreversible condition from which no recovery was expected.
It only comes into play once you lack the capacity to make or communicate the decision yourself. While you can still say what you want, your own contemporaneous decision always governs, and you can change your mind at any time.
When it is valid and applicable, clinicians must follow it. Treating you contrary to a valid Advance Decision is unlawful, which is why precision in the drafting matters so much.
There are limits worth understanding. You cannot demand a particular treatment, you cannot refuse basic care such as warmth, cleanliness and the offer of food and drink by mouth, and you cannot ask for anything unlawful.
Refusing Life-Sustaining Treatment
If your Advance Decision covers life-sustaining treatment, such as ventilation, cardiopulmonary resuscitation or clinically assisted nutrition and hydration, the law imposes extra formalities.
That part of the document must be in writing, it must state expressly that the refusal applies even if your life is at risk, and it must be signed by you and by a witness who signs in your presence. If you are unable to sign yourself, someone may sign at your direction, again in the presence of a witness.
Advance Decisions that fail on one of these points are the ones that cause distress later, because a clinical team faced with a document of uncertain validity will usually treat. We make sure yours is signed and witnessed properly, and that its wording says what you actually mean.
How It Works Alongside a Health and Welfare LPA
People often assume the two documents do the same job. They do not, and most clients benefit from having both.
A Health and Welfare Lasting Power of Attorney appoints people you trust to weigh up decisions on your behalf, in real time, with the benefit of medical advice nobody can anticipate today. An Advance Decision states your own refusal in your own words, and it binds the clinical team directly rather than relying on anyone's judgement.
The order of priority follows the dates. An Advance Decision is generally overridden if you later make a Health and Welfare LPA giving your attorney authority over the same treatment, and an Advance Decision made after an LPA takes precedence over the attorney's decision on the matters it covers. Because dates and wording decide the outcome, the two documents need to be drafted as a pair.
That is exactly what we do. We look at your LPA and your Advance Decision together, make sure the authority you have given and the refusals you have recorded do not contradict one another, and tell your attorneys where the document is kept. Our Lasting Power of Attorney page explains the LPA side in more detail.
Making Sure It Is Found and Followed
A document nobody can find protects nobody. Your Advance Decision needs to reach the people who might one day rely on it.
We help you give a copy to your GP so it goes on your medical record, provide copies for your attorneys, your next of kin and anyone involved in your care, and suggest keeping a note in your wallet or on your phone saying that an Advance Decision exists and where it is held. If you are admitted to hospital or move into a care home, a copy should go with you.
Review it regularly. Medicine changes, and so do people. We suggest looking at it every few years and after any significant change in your health, and initialling and dating it when you do, because a document reviewed recently carries far more weight with a clinical team than one signed twenty years ago and never revisited.
You can withdraw or alter an Advance Decision at any time while you have capacity, and a withdrawal need not be in writing, though a refusal of life-sustaining treatment must meet the written formalities to be reinstated.
Our Advance Decision Service
This is a conversation as much as a document, and we do not rush it:
- An unhurried discussion about your health, your beliefs and what you would and would not want.
- Careful drafting of the treatments refused and the circumstances in which each refusal applies.
- The correct wording and formalities where life-sustaining treatment is involved, properly signed and witnessed.
- A check that your Advance Decision and any Health and Welfare LPA sit together consistently.
- Copies for your GP, your attorneys and your family, with practical advice on where to keep them.
- A reminder to review, and help updating it when your circumstances change.
Where a clinical or legal question needs specialist input, we work with a local solicitor and are able to cover any and all of your requirements.
Call us on 0800 048 7320, or use the contact form on our home page, and we will talk it through at your pace.
Frequently Asked Questions
What is an Advance Decision, or living will?
Do I need an Advance Decision if I already have a Health and Welfare LPA?
Working alongside a local solicitor
We work with a local solicitor and are able to cover any and all of your requirements. If in doubt, call us on 0800 048 7320 and ask, or use the contact form on our home page.
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We will talk it through at your pace and make sure the document is signed and witnessed correctly.
