Living Wills

Living Wills, Advance Decisions and Advance Directives

Living Wills are a means of making a choice about which treatments you would want to receive or not receive should you be unable to make such choices on health matters for yourself. While “Living Will” is the most commonly used term, the legal aspect of such documents is referred to as an Advance Decision or Advance Directive. These were not enshrined in law until the Mental Capacity Act 2005, which came into force in April 2007.

A Living Will can set out your wishes in terms of potential future medical treatment, but the only part which is actually legally binding – as opposed to a mere expression of preferences which may be ignored at a doctor’s discretion – is the Advance Decision aspect of it.

The Advance Decision allows you to specify any medical treatments you would not want to receive, even those you are likely to die without. This will be considered legally binding, and the only cases in which it will not be followed are when there is good reason to believe that you would have changed your mind or were not mentally sound when you made the document.

For example, refusal of treatment may still fall to a doctor’s discretion if your circumstances could not have been anticipated and this may have affected your opinion (for example, if a new treatment has been developed for your condition which vastly changes your prognosis) or if you have acted in a manner which suggests a change of mindset since you created the document (for example, a change of religion). Your Advance Decision may also be overridden if there is uncertainty over what should be done, or if you have been treated under the Mental Health Act, suggesting that you may not have been of sound mind when you made your decisions.

You may also establish if you would like any and all life-sustaining treatment to be attempted, letting the doctors know that you would like them to try absolutely everything, no matter how slim your chance of surviving. While this aspect of the Living Will is not legally binding, it will at least let the medical professionals attending to you know that you would like them to do everything in their power to keep you alive.

Other things you cannot do within a legally-binding Advance Decision include requesting specific treatments, asking for your life to be ended (since this is illegal, although ceasing treatment which is the only thing keeping you alive is permissible),  forcing a doctor to act against their professional opinion or nominating another person to make decisions about the care you should receive. (That latter purpose can be achieved with a Lasting Power of Attorney, however.)

The following are the guidelines for putting together an Advance Decision.

• It must be made by someone aged 18 or over who has the capacity to make such decisions.
• It must explain which treatments you would want to refuse, and in which circumstances this refusal would apply.
• The choices must be made of your own free will, without any pressure from any other party.
• It must not have been modified since it was made, nor should you have subsequently expressed a contrary opinion either verbally or in writing.
• If the Advance Decision involves the refusal of life-sustaining treatment, it must be in writing (though it does not have to be written by you). It must also be signed and witnessed – the signature should either be yours or be that of someone you have chosen to sign for you - and it must specify that your refusal endures “even if life is at risk”.

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