It is also known as an ‘Advance Decision’, an ‘Advance Decision to Refuse Treatment’, an ‘ADRT’, or a ‘Living Will’.
It will be legally binding if:
- it complies with the Mental Capacity Act 2005;
- it is valid; and
- it applies to the situation.
The Living Will will only be considered if:
- You make the document when you are 18+, at a time that you have the mental capacity to understand and communicate your decisions
- You are clear in the document about which treatments you are refusing
- You are clear about the circumstances in which you wish to refuse them
- The document is signed by you, and by a witness if you want to refuse life-sustaining treatment
- The document has been made of your own accord, without any harassment by anyone else
- You have not said or done anything that contradicts the Living Will since you made it
In your Living Will, you may decide that in certain situations, you do not want to receive particular life-sustaining treatments. Common examples of such treatments are:
- ventilation – if you are unable to breathe by yourself;
- cardiopulmonary resuscitation (CPR) – if your heart stops; and
- antibiotics – to help your body fight infection.
CPR for example can have a devastating effect on a frail person. Even if successful, it can cause
- fractured ribs
- damage to the liver and spleen
- brain damage, leading to disability
Only 2 in 10 people who receive CPR survive, and those who do survive may need high-intensity medical support afterwards, and a small number need prolonged treatment in an intensive care unit (ICU).
Do I have to make a Living Will?
You do not have to have a Living Will in place. In the absence of this document, your doctors will decide what treatments to give you or not to give you, based on what they believe to be in your best interests. They will listen to the views of those close to you, particularly in relation to life-sustaining treatment, but only the doctors caring for you can make the final decision as to what treatments should or should not be offered.
Unfortunately it may be that those close to you do not have a complete understanding of your views on life sustaining treatment. Making a Living Will ensures that your beliefs and views are communicated to those caring for you, in case you aren’t able to discuss them at the relevant time.
Do I need both a Living Will and Health & Care Lasting Power of Attorney?
I would advise having both. The Health and Care Lasting Power of Attorney (LPA) deals with decisions about day-to-day care which the Living Will does not.
The Health and Care LPA also allows you to include instructions (which are binding, and can be positive – i.e. things that your attorneys must do) and preferences. The Living Will provides a breakdown of treatments that you don’t want, in potentially end-of-life scenarios.
You could include details in the LPA of the life sustaining treatment treatment you would like to refuse, but it is more typical to include these in a Living Will as they are typically quite detailed.
The two documents are very different, but they do interact and can potentially conflict. Firstly, there is an option in the Lasting Power of Attorney to give your attorneys the right to make decisions about life sustaining treatment for you.
If you chose Option A but then went on to make a Living Will, the later Living Will would be binding in relation to any treatments or situations that it covered. If instead you first made the Living Will and chose Option A, your Attorneys could overrule your Living Will.
Further, as noted above, it’s possible to include instructions which are legally binding in the LPA (such as not to resuscitate). So there is a possibility that the two documents could conflict, and certainly cause some confusion over your wishes. Using a solicitor to draft both can help prevent this.
The Compassion in Dying website has an example of what might happen in a conflict:
Miss Hart appointed her brother, George, to be her Attorney for health and welfare. A few weeks later she also made an Advance Decision to refuse resuscitation if she had a heart attack, as she was worried that George would not be able to go through with making this decision for her. If she becomes ill in the future, the doctor will follow George’s decisions in almost all circumstances because he is her Attorney. However, if she has a heart attack, they will follow her Advance Decision because this was made more recently. George cannot tell the doctor not to follow his sister’s Advance Decision.
If Miss Hart had appointed George to be her Attorney AFTER making her Advance Decision, and she had given him the power to make decisions about life-sustaining treatment, he would have the power to tell the doctor not to follow her Advance Decision.
Can I insist on receiving life-sustaining treatment?
The short answer to this is no! It is always the doctor’s decision whether to offer or not to offer a particular treatment. They would not, for example, go ahead with a treatment which would cause you harm and pain, if it were extremely unlikely to be successful.
Doctors will always take your wishes into account. If you would always like to receive life-sustaining treatment in any circumstance, this would be something to include in the preferences section of your Health and Care Lasting Power of Attorney. Whilst preferences are not binding, they do make your views very clear.
Is a ‘Living Will’ or ‘Advance Decision’ the same as an Advance Statement?
A Living Will/Advance Decision is not the same as an Advance Statement. Living Wills are legally binding. Advance Statements simply set out your wishes, beliefs and values regarding your future care.
How your solicitor can help
I can assist you in drafting a Living Will at the same time as making a Lasting Power of Attorney for Health and Care Decisions. I will ensure that these two documents work together without any conflicts.