Advance decision - living wills
What are they?
Living wills are not actually wills at all.
‘Living will’ is the former, and perhaps more widely-known, name for an advance decision.
An advance decision is a legally binding document in which you can set out your wishes about whether you should receive a particular medical treatment if you lack mental capacity to make or communicate the decision at the relevant time.
To make a valid advance decision you must:
- be over 18; and
- possess sufficient mental capacity to be capable of making your own decisions.
By making an advance decision you can ensure that your wishes regarding your medical treatment are set out clearly for your loved ones, who might otherwise need to make the decision on your behalf, and for the medical professionals who would be providing the treatment.
Just as creating a will enables you to retain control over the way in which your assets are distributed, an advance decision is a way to retain control over your medical treatment should circumstances arise that mean you would be unable to communicate your wishes. Additionally, it may encourage you to consider, if you have not previously done so, exactly which treatments you would be prepared to accept and which ones you would not.
It's worth discussing your wishes with your GP or medical team, as they may be able to help you phrase your preferences clearly and accurately. They may also help you to understand the implications of consenting to or refusing a particular treatment, thereby helping you to make a more considered and informed decision.
Given the personal nature of the information contained in it, not to mention its importance, it is advisable that you take steps to ensure your advance decision is stored safely and securely. You should also inform the relevant people (such as close relatives and friends) of its existence and location. One option is to send a copy to your GP or medical team for inclusion with your medical notes.
Making an advance decision is not the same as making a decision about whether to offer any of your organs for transplant after your death. For more information on that see Organ donation.
Does it have to be signed and witnessed?
There is no set form for an advance decision, but it does need above all to be clear.
If you are using an advance decision to refuse a treatment that would be life-sustaining, it needs to be signed and witnessed. This means the advance decision must be in writing, and it would need to be signed by both you and the witness. In addition, it must clearly state that your decision is to refuse the treatment even if doing so puts your life at risk.
Is it the same as a will?
The names may be similar, but a living will (or advance decision) and a will are two very distinct things. An advance decision allows you to record your wishes regarding certain aspects of your medical treatment, while a will allows you set out how you would like your estate to be distributed upon your death. For more information, please see What to include in a will.
What is an advance statement?
If you have wishes of a broader nature, for example specifying the kind of long term care you would like to receive, then you can make what is known as an advance statement. This statement, which is not legally enforceable, does not need the same degree of formality. Indeed, it need not be in writing at all.