Explained: What is a Living Will?

Most of us will be used to a Last Will and Testament, a legal document forming a crucial element of one's estate plan that is executed upon death. It's purpose is to clearly specify the testator's wishes, for example how property should be distributed, how and who should care for children etc etc. It also names one or more persons as executor(s), to manage the estate until its final distribution.  

A Living Will differs in that it is executed before death and is concerned not with property and assets, but one's health. It is specifically used to ensure that in the event you are no longer able to communicate decisions for yourself, everyone, including doctors, know your wishes about your care and what treatments you do not want and also in what circumstances.

It's legal name is an Advance Decision to Refuse Treatment (shortened to Advanced Decision); it’s also referred to as an Advance Directive.

Advance Decisions are legally binding in England and Wales, as long as they meet certain requirements. This means that if a healthcare professional knows you’ve made an Advance Decision, they have to follow it. For example, you can document the refusal of CPR, life support, receiving antibiotics for the treatment of life-threatening infections etc etc. If these directives are deliberately ignored, court proceedings could follow.

To reiterate, an Advanced Decision cannot be used for estate planning; testamentary decisions are provided for within your Last Will and Testament.

Any adult who has capacity can make an Advanced Decision. Capacity means the ability to use and understand information to make a decision, and communicate any decision made. A person lacks capacity if their mind is impaired or disturbed in some way and this means the person is unable to make a decision at that time.

There’s no set form so you can write one yourself as long as it meets the requirements needed to be valid and applicable. This simply means that you must be able to understand the consequences of refusing medical treatment and that medical staff must abide by the requirements.

You don’t need a solicitor to write an Advance Decision, but the following must apply:

  • You must be at least 18.

  • You must sign and date the document

  • It must be witnessed and your witness must watch you sign and then sign themselves

If contemplating an Advanced Decision, then it's advisable to take some time to consider the following:

  • Think about what you want and the specific situations you’d want to refuse treatment.

  • Speak to those close to you about your wishes.

  • Discuss your Living Will plans with your GP. They should be able to provide counsel on the what you wish to include, and/or explain the full effect of any instruction you include.

  • If you want to refuse life-sustaining treatment you must include a sentence that states that your refusals apply even if your life is at risk or shortened as a result.

  • Give yourself time to think things through thoroughly.

  • At the time of signing, it might also be a good idea for your GP to also confirm that you were compos mentis. This will ensure validity and applicability.

  • Give a copy of your signed and witnessed Advance Decision to the people close to you, your GP and anyone else who will be involved in your care. This will help to ensure the applicability.

Advanced Decisions are not general pronouncements, they are very specific and apply only in the circumstances that you define. Therefore:

  • It is not possible for you to nominate someone else to make decisions on your behalf. There is no executor type function.

  • You cannot request a particular medical treatment; that is for your medical team to decide.

  • Your Advance Decision will only apply to the treatments you have refused within it.

  • You cannot specify refusal of basic treatment, food or water.

Medical circumstances that occur outside the Advanced Decision document will be considered by your health care team. If any part of your statement can be open to interpretation, it may affect its applicability. 

As time passes, treatments advance and your personal circumstance will change (whether in micro steps or macro alterations). It is thus important to regularly review and if required, update your Advanced Decision in order for the document to remain both valid and applicable.