MAKE YOUR FREE Living Will / Advance Directive

This Living Will/Advance Directive template covers the circumstances in which you do not want life-sustaining treatment if:

• you have lost the ability to make your own decisions (you have 'lost capacity’)

• you are no longer able to care for yourself in relevant situations, and

• you have one or more carefully considered conditions (eg a terminal or degenerative disease or permanent pain) from which you are unlikely to recover

If you lose your ability to make decisions due to an illness (such as dementia) or an accident that results in a brain injury, you can maintain some control over your affairs with a Living Will/Advance Directive. In England and Wales, this often works in conjunction with a lasting power of attorney (LPA), In Scotland, this often works in conjunction with a continuing power of attorney (CPA), welfare power of attorney (WPA) or a combined CPA and WPA. In the absence of any instructions regarding how you wish to be treated, you may receive care that does not fit with your beliefs (social or religious). 

Use our LPA Drafting Service to make an LPA.

An Advance Decision/Advance Directive is a document in which you can specify any medical treatments that you wish to refuse. By doing this, you inform doctors and other medical staff of your decision in case you lack the mental capacity to state your refusal at the time (eg because you have advanced dementia, brain damage or are unconscious).

An Advance Decision/Advance Directive should clarify the circumstances under which you do not wish to receive specified treatments, as far as possible. It only allows you to refuse certain treatments (eg refuse CPR, ventilation or a blood transfusion); not request them. Note that it can be used to refuse treatment even if doing so might lead to your death but it cannot be used to ask for your life to be ended. Unlike an advance statement, an Advance Decision is legally binding in England and Wales if it is correctly created. In Scotland, an Advance Directive is currently not legally binding.

An advance statement is a separate document, which sets out how you wish to be cared for if you are unable to state your preferences due to a lack of mental capacity. It can include a range of matters including dietary requirements and whether you would prefer to be at home or in a medical facility. It may also state any religious beliefs you hold which could affect the treatment you receive. It can also cover your priorities regarding medical treatment, for example, whether you wish to prioritise comfort or life-prolonging treatments should a choice arise. Advance statements are not legally binding (in England, Wales or Scotland) but doctors and others caring for you must take them into account.

If you wish to refuse life-sustaining treatment as part of an Advance Decision, to make your decision binding you need to follow the procedures in the Mental Capacity Act 2005. In England and Wales, to make an Advance Decision regarding life-sustaining treatment binding you must:

• be over 18 and have mental capacity to make, understand and communicate your decision at the time of making the Advance Decision (more below)

• ensure that it is in writing;

• sign and date the document - in the presence of a witness who must also sign the document

• be as clear as possible about the circumstances in which you do not wish to receive treatment (eg explain that you wish to refuse resuscitation required due to your diagnosed terminal illness - this will not then apply to resuscitation required due to other causes, for example, trauma following a road accident)

• include a statement that clarifies that you would like the Advance Decision to apply even if this puts your life at risk as a result (this statement is covered by the section in this document entitled 'moral reasons for making this living will')

• have made the Advance Decision of your own free will, without pressure or harassment from others

• not have done or said anything that contradicts the Advance Decision after you made it (eg saying that you've changed your mind)

You can also (optionally) ask your GP to sign a statement confirming they are aware of your Advance Decision. Either way, make sure that your GP, any relevant medical staff and/or your relatives know you have an Advance Decision and where to find it.

In Scotland, Advance Directives are currently not legally binding. This is because Advance Directives have not been tested in court. However, a valid and applicable Advance Directive would likely be upheld by the courts if it was challenged.

This is because, under the Adults with Incapacity (Scotland) Act 2000 (the law outlining how someone lacking capacity will be treated), the wishes of an adult without mental capacity should be considered. This means that, while Advance Directives are currently not legally binding in Scotland, healthcare professionals should take them into account when treating someone. Further, family and friends can use an Advance Directive as evidence of the person’s wishes.

Mental capacity is the ability to make specific decisions when necessary. Someone will be considered as having mental capacity if they understand a decision they need to make, why they need to make it and the likely outcome of the decision.

In England and Wales, mental capacity is governed by the Mental Capacity Act 2005. Under the Mental Capacity Act, people are presumed to have capacity unless proven otherwise. The Mental Capacity Act sets out a 2-stage test to establish whether someone lacks mental capacity:

• Does the person have an impairment of their mind or brain (whether as a result of an illness, like dementia, or external factors, like alcohol or drugs or trauma)?

• Does this impairment mean the person is unable to make a specific decision when they need to?

In Scotland, mental capacity is govered by the Adults with Incapacity (Scotland) Act 2000. Under this Act, someone lacks capacity if they are unable to make decisions for themselves because they: 

• have a mental disorder, or

• are not able to communicate because of a physical disability

It’s important to note that people can lack capacity to make some decisions, but have capacity to make others. Further, someone’s mental capacity can fluctuate and change with time, and people may lack capacity at one point, before being able to make the same decision later.

Generally speaking, someone will lack mental capacity and be unable to decide for themselves if they cannot:

• understand information relevant to the decision

• retain and remember the information

• use (eg evaluate) the information as part of the decision-making process

For more information on mental capacity, see the NHS website.

While an Advance Decision is legally binding in England and Wales, it can be challenged. Under the law, Advance Decisions can be challenged if there is a reasonable belief that you may have changed your mind. This could be due to medical advances, changes in your own situation or because the document was written a long time ago.

As a result, it is important for you to regularly review your document and communicate your decisions to all relevant parties (eg your GP and family).