Living Wills and Advance Directives

A Living Will, or Advance Directive, is a legally binding document that provides health professionals with instructions about the care and medical treatments you do not want to receive in the event that you lose mental capacity.

Before the contents of a Living Will can be followed, a mental capacity assessment will need to be conducted by health professionals to establish whether you are capable of making your own decisions.

Mental Capacity is the ability to make decisions for yourself. The Mental Capacity Act 2005 (MCA) sets out the law on mental capacity.

Under the Act, anyone who lacks mental capacity is not able to:

• Understand information about a specific decision
• Retain the information long enough to be able to make a decision
• Consider information to assist with making a decision
• Communicate the decision, either verbally or through any other means such as sign language

There are a number of reasons why you may lack mental capacity at a certain point. These include where you suffer from an illness such as Alzheimer’s Disease, or a condition such as a stroke or brain injury.

Loss of mental capacity can be temporary. For example, someone who is unconscious lacks mental capacity, but they can regain this at a later time when they wake up.

The MCA can cover any number of decisions. It can range from simple day-to-day decisions that every person makes, such as what to have for breakfast or what to wear, through to important, life-changing decisions such as whether to have surgery or to sell a property.

It is important to note that mental capacity is always assessed on an individual basis. Just because someone is able to decide on what to wear, this does not mean that they have the capacity to make decisions about their medical treatment.

When making a Living Will, you should carefully consider the types of treatment you wish to refuse and under what circumstances these will be appropriate. It is strongly recommended to get expert Living Will advice to ensure nothing has been overlooked.

Often, Living Wills include provisions for:

Life-sustaining treatment

A Living Will can be used to put provisions in place to refuse certain treatment that would keep you alive. This could include:

• Ventilation to help you breathe
• CPR (cardiopulmonary resuscitation)
• Antibiotics to fight infection

Do not attempt CPR

It is possible to refuse CPR in advance of losing mental capacity. If this is a decision you would like to make, it is important to speak to your friends and family so that they are aware of the situation.

A Living Will cannot include any requests for a health professional to end your life (euthanasia) as this currently remains illegal in the UK.

An Advance Directive is simply another way of referring to a Living Will. The term Advance Decision is also commonly used and, again, this is simply another way of referring to a Living Will.

If you do not think that a Living Will is suitable for your situation, or you would like more basic health and care decisions to be made on your behalf if you lose capacity, there are alternative options.

For example, you can make a Health and Welfare Lasting Power of Attorney. Under this, the appointed Attorneys can make decisions such as whether to give or refuse consent to medical treatment or decide where you should live.

So long as your Living Will fulfils certain formal requirements, it will be considered legally binding. Your doctors will therefore need to abide by your wishes.