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Is my Advance Decision (Living Will) legally binding?

The Mental Capacity Act (MCA) says that an Advance Decision (Living Will) is legally binding if it’s ‘valid’ and ‘applicable’. This means that if a healthcare professional knows that you have a valid and applicable Advance Decision and they ignore it, they could be taken to court.

How do I make sure my Advance Decision (Living Will) is valid?

For your Advance Decision to be valid you must:

Be 18 or over

You must be at least 18 years old to make an Advance Decision.

Have capacity to make your Advance Decision (Living Will) 

When you make your Advance Decision, you must have capacity to make the decisions that you include within it. For example, you must be able to understand the consequences of refusing medical treatment.

Say what treatments you want to refuse

Your treatment refusals can be written in everyday non-medical language. A general statement that you don’t want to be treated isn’t specific enough to be followed. However, if you’re refusing life-sustaining treatment, you can write that you refuse ‘all life-sustaining treatment’. This is still specific because it will be clear to a healthcare professional what is and isn’t life-sustaining in a particular situation. Some examples of life-sustaining treatment include artificial nutrition and hydration, breathing machines or cardiopulmonary resuscitation (CPR).

Say the circumstances when you want to refuse treatment

In your Advance Decision you must specify when you want your refusals of treatment to apply. For example, you might want to refuse treatment if you have a cardiac arrest, a stroke or dementia.

Refusing life-sustaining treatment

If your Advance Decision contains a refusal of life-sustaining treatment it must also:

Be in writing

An Advance Decision that includes a refusal of life-sustaining treatment must be written down.

State that the Advance Decision applies even if your life is at risk or shortened as a result of refusing treatment

The law says you need to include a statement like this because it shows that you’ve considered your decisions and you understand the consequences of refusing life-sustaining treatment.

Be signed and witnessed

You must sign your Advance Decision. If you’re unable to sign the document, you can ask someone else to sign it on your behalf. You also need someone to witness your Advance Decision. The witness must watch you sign your Advance Decision and then also sign it themselves.

If you can’t sign your Advance Decision yourself, the person who signs on your behalf cannot be the same person as your witness.

You don’t need a solicitor to make an Advance Decision.

When will my Advance Decision (Living Will) be applicable?

Even if your Advance Decision is valid, it will only be legally binding if it’s also applicable.

Your Advance Decision will be applicable if:

You lack capacity to make a decision about your medical treatment

While you have capacity to make the decision you can give or refuse consent to any medical treatment yourself and your Advance Decision won’t be used.

It covers the circumstances you’re in

Your Advance Decision will only apply if you’re in a situation that you have included within it. If you’re in a different situation, your Advance Decision won’t apply. For example, if you refuse life-sustaining treatment if you have dementia, but not in any other situations, then if you have a stroke your Advance Decision won’t apply.

It covers the treatments in question

Your Advance Decision will also only apply to the treatments you have refused within it. For example, if your Advance Decision only includes a refusal of CPR, but later you lose capacity and need to be given artificial nutrition and hydration, your Advance Decision won’t apply.

There’s no reason to think that you’ve changed your mind about what you’ve written in your Advance Decision

If something happens after you’ve made your Advance Decision that would have affected what you wrote within it, it may not be applicable. For example, if new treatments have been developed or you became pregnant after you wrote it, this could affect the decisions that you made.

If you’ve acted inconsistently with what you’ve written in your Advance Decision, it may raise doubts over whether you’ve changed your mind about what you have written. For example, if you’ve converted to a religion that has certain values or beliefs about medical treatments, it could suggest that you’ve changed your mind about your Advance Decision.

Because of this it’s a good idea to review and if necessary update your Advance Decision regularly. The more recently it has been reviewed, the more likely it is to reflect your current wishes. We recommend you review your Advance Decision every two years, or sooner if your health changes.