Advance Decisions (also known as Living Wills)

It is a legally binding statement you can make during your lifetime about the medical treatment you may or may not wish to receive.

An advance decision, also referred to as a living will, is a legally binding document that enables you to state your preferences regarding the medical treatment you desire or do not wish to receive during your lifetime.

By creating an advance decision, you can effectively communicate your healthcare choices, ensuring that your wishes are respected even if you become unable to make decisions or communicate them at a later stage.

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This legally enforceable statement grants you control over your medical care by outlining specific instructions about the treatments, procedures, or interventions you want to receive or refuse, under various circumstances that may arise.

An advance decision can be made orally with supporting evidence, but this approach may lead to uncertainty regarding your wishes. Therefore, it is highly recommended to have a written advance decision to ensure clarity and avoid any potential misunderstandings.

If your advance decision includes a refusal of life-sustaining treatment, it needs to be recorded in writing, signed, and witnessed. This ensures the validity and enforceability of your decision, leaving no room for doubt or misinterpretation.

By having a written and properly executed advance decision, you provide a clear record of your preferences, allowing healthcare professionals, loved ones, and legal authorities to honour your wishes with confidence. This written document serves as a vital tool in protecting your autonomy and ensuring that your healthcare choices are respected in situations where you may not be able to communicate them directly.


What is required for an advance decision to be legally binding?

To ensure that your advance decision (living will) is legally binding, it is necessary to fulfil the following conditions:

  • Mental capacity – you must possess the mental capacity to make your own decisions at the time of creating the advance decision.
  • Age requirement – you must be over the age of 18 to make a valid advance decision.
  • Clear specifications – your advance decision must explicitly outline the treatment(s) you wish to refuse and the circumstances under which you want such treatment to be declined.

It's important to note that an advance decision only comes into effect once you have lost capacity, and it is only enforceable if it meets all the above criteria. If the advance decision fails to comply with these conditions, the doctors treating you may choose to disregard it.

You retain the right to withdraw or modify your advance decision at any point before you lose capacity. If you decide to replace it with a new one, the new document must also meet the above requirements.

However, it's crucial to understand that an advance decision cannot be used for the following purposes:

  • Requesting illegal actions – it cannot be used to demand anything that is illegal, such as euthanasia.
  • Inappropriate care demands – it cannot be used to insist on care that your doctor deems inappropriate for your specific circumstances.
  • Refusing food and drink – it cannot be used to refuse the offer of sustenance through oral intake (food and drink).
  • Denying palliative and basic nursing care – it cannot be used to decline essential palliative care and basic nursing services, including pain relief and personal hygiene assistance (such as bathing).

By understanding these limitations, you can ensure that your advance decision remains within the bounds of legality and effectively communicates your treatment preferences while also respecting the ethical considerations of medical care.


The difference between an advance decision and a health and welfare LPA

Another option available to you is creating a health and welfare Lasting Power of Attorney (LPA). With this document, you can appoint a trusted family member or friend as your attorney to make decisions concerning your health and welfare if you become mentally incapacitated in the future. Your chosen attorney(s) will have the authority to act on your behalf and make decisions aligned with your best interests. It’s worth noting that you can write your preferences in an LPA to support your chosen attorneys with their decision making, but ultimately, they make the decision for you. With an advance decision however, you make your own choice about the treatment you wish to refuse.

Furthermore, through a health and welfare LPA, you can grant your attorney(s) the power to accept or refuse life-sustaining treatment on your behalf, ensuring that your wishes regarding such critical medical decisions are respected even if you are unable to express them yourself.

In the event of any conflict between a health and welfare LPA and an advance decision, it is important to note that the most recent document will take precedence.

When seeking assistance for creating living wills and related legal matters, opting for a member of The Association of Lifetime Lawyers can provide you with the assurance of expert knowledge and extensive experience in dealing with these matters. Lifetime Lawyers are well-equipped to provide guidance and ensure that your legal needs are addressed appropriately. Find a lifetime Lawyer near you here.


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