Living Will / Advance Decision
A Living Will relates only to medical treatment and has nothing to do with the administration of your estate. Brought into law under the Mental Capacity Act 2005, it is correctly called an Advance Decision.
The purpose of an Advance Decision is to enable the individual to set out their wishes regarding consent to specific types of medical treatment in specific circumstances. It takes effect if, when those circumstances do arise, the patient is deemed to no longer have capacity, or cannot communicate.
A valid Advance Decision is legally binding, and must be heeded by treating healthcare teams. It gives effect to the patient’s wishes as though they had capacity and were able to communicate with the medical team at that moment.
To be valid, the Advance Decision must be made by a person over the age of 18, with full mental capacity. It should be in written form and signed in the presence of the witness. The witness should also then sign it in the presence of the person making the Decision.
We can talk you through the relevant scenarios, take your instructions and prepare the paperwork for you.
To find out more take a look at our FAQs section below.
Advance Decision – FAQs
I have a Health & Welfare LPA. Do I need an Advance Decision?
The two are separate, but whichever is the most recent will take priority legally.
For example, if a Health & Welfare Lasting Power of Attorney is registered to act on your behalf and you later make an Advance Decision covering what to do if you become unable to swallow, your medical team are legally obliged to adhere to your wishes as expressed in your Advance Decision, rather than listen to your Attorney if that situation arises.
On the other hand, if you have made an Advance Decision to cover your preferred treatment should you develop a life threatening infection, and later decide to register a trusted friend or family member to have Power of Attorney for you in Health & Welfare matters, then their instructions will over rule those set out in your Advance Decision should that situation arise.
It is important to note that an Advance Decision will only cover your wishes regarding treatment being given or withheld in very specific circumstances. The remit of an Attorney is much wider. They are empowered to be your advocate in all areas of your health and welfare, which may be important should you lose the ability to communicate your own wishes about your treatment and care on a long term basis.
You may wish to have both in place. If you have a Health and Welfare Attorney, you must make sure they have a copy of your Advance Decision, so that they can refer to it should the need arise.
Contact us to discuss your requirements and we can advise you regarding the most appropriate provision for your situation.
Is an Advance Decision the same as an Advance Statement?
Most of the information on this page is about making an Advance Decision, which is a legally binding document. You may also wish to make an Advance Statement. This non legally binding document sets out your preferences about future treatment and should be taken into consideration by medical professionals when managing your end of life care.
An Advance Statement stipulates the patient’s wishes and background or rationale to their views. This is a wide ranging document, designed to better inform your medical team as to how you would wish yourself and your loved ones to be treated at this stage in your life. It can include your opinion and requests relating to your feeding preferences, personal hygiene, location and environment in which you are cared for, preferred form of address, information about organ donation, arrangements for pets, religious traditions or practices, and pastoral care.
The Advance Statement provides the bigger picture about you as a patient, and useful in filling in the reasoning behind your Advance Decision. However, remember it is not a legally binding document and it is not necessary to make one if you are not concerned about these aspects of your care or are confident that your loved ones will be a good advocate for you.
Should you wish to collate an Advance Statement, it is a good idea to do so at the same time as your Advance Decision so that they can be completed, stored and reviewed together.
Where should I keep my Advance Decision?
When your Advance Decision is completed, you should provide a copy to your GP and any other medical practitioners who regularly treat you. Ask them to include it in your medical records and your Electronic Patient Summary.
You may have registered someone as your Health & Welfare Attorney. You must give them a copy of the Advance Decision too, as it will take priority over their views should the specific medical circumstances you have provided for arise.
You may want to put a card or note in your wallet or purse, stating the location of your Advance Decision. If you are travelling, you should take a copy with you, and note on it where the original is kept.
You can also display a Lions sticker on your front door and fridge, to alert paramedics or other emergency services to the existence of your Advance Decision if they are called to your home. Find out more here: https://www.scas.nhs.uk/news/campaigns/message-in-a-bottle/
Can I change my Advance Decision?
Yes, you can change your Advance Decision at any time while you have mental capacity. You should always make a new Advance Decision when your wishes have changed, to ensure there is no confusion with regard to what you want to happen.
When you make a new Advance Decision, you must ensure anyone who holds the old version destroys it. You should also provide your GP and anyone else relevant with the new Advance Decision so that they are fully aware of your instructions.
It is wise to review your Advance Decision at least every two years, even if your views remain the same, and preferably in conjunction with your GP or other medical professional. There are many advances in medicine and treatment options, and you may change your mind about your instructions when new information comes to light.
Does my Advance Decision go out of date?
It is wise to review your Advance Decision at least every two years, and preferably in conjunction with your GP or other medical professional. There are many advances in medicine and treatment options, and you may change your mind about your instructions when new information comes to light.
When you review your Advance Decision, we recommend you sign and date it to indicate you have done so. This will reassure your healthcare team that the opinions you express in your Advance Decision were regularly reviewed and that you maintained those views.
It is possible for treating doctors to apply to have an old Advance Decision set aside, to allow them to continue life-saving, or life-extending treatment if there is any indication that the patient’s views expressed in the Advance Decision were out of date.
For example, if a new drug or treatment method specific to the medical condition has come into use subsequent to the Advance Decision being made, and there is no evidence that the patient reviewed their Advance Decision in light of this medical progress, the treating doctors may feel the patient’s instructions would no longer be the same. They can then apply to Court for permission to act in accordance with the patient’s best interests, rather than following the Advance Decision.
I made an Advance Decision before 1 October 2007.
Advance Decisions are legally binding when they comply with the requirements of the Mental Capacity Act 2005. This Act came into force on 1 October 2007, so if you made an Advance Decision prior to that date we recommend that you make a new one to ensure that it meets the necessary criteria and is not set aside for being invalid.
It is recommended that you review your Advance Decision regularly in any event, to show your medical team that you kept abreast of medical and pharmaceutical developments. It would therefore be appropriate to make a post-Mental Capacity Act Decision to show that you reviewed your decision in light of the changes to the law in this area.
Contact us to make an appointment to draw up your new Advance Decision.