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Help Guide

Advance Decisions and Advance Statements

Whilst Wills are crucial for making your post-death intentions known, they cannot be used to set out your wishes for later life. Advance Decisions and Advance Statements, however, are ways in which you can specify your choices if certain medical situations arise later in your lifetime. For this reason, they are sometimes referred to as ‘Living Wills’, though the term
can be misleading.

This factsheet looks at what Advance Decisions and Advance Statements are, the differences between them, and the kinds of pre-emptive choice they can be used to make.

Advance Decisions and Advance Statements 1

Advance Decisions

What is an Advance Decision?

An Advance Decision is used to specify situations where you would want to refuse particular kinds of medical treatment in the future. If you find yourself in circumstances where this medical treatment is required, and you do not have the capacity to consent or refuse consent at the time, your Advance Decision would take effect.

This could be because you have suffered an accident, are unconscious, or you are suffering from a condition that means you are no longer mentally capable to make decisions about the medical treatment you receive.

You always have the right to choose how – or even if – you are treated. An Advance Decision is a way to insure against the possibility that you are unable to make your choice, or unable to communicate it, at the time in question. It effectively moves the time of your choice forward, to a point where you have the mental capacity to make your decision.

Every Advance Decision is different because it is tailored to reflect the views of the person who has made it. Many people have strong beliefs in relation to certain kinds of medical treatment.

Examples of treatments which could be subject to an Advance Decision include:

  • Blood transfusions.
  • Kidney dialysis.
  • Organ transplants.
  • Chemotherapy.
  • Artificial nutrition (administered intravenously).
  • Life-sustaining treatment.

It is important to note, however, that although you can specify circumstances in which you would want to refuse life-sustaining treatment, you cannot use an Advance Decision to request or authorise assisted dying.

A valid Advance Decision will be legally binding on the healthcare professionals who are treating you. This means they will have to follow it as though you had made this decision at the time in question.

How do I make an Advance Decision?

You must meet certain requirements to be able to make an Advance Decision for it to be valid. If your Advance Decision includes any refusal of life-sustaining treatment then there are additional requirements. All of these requirements are detailed in the Code of Practice to the Mental Capacity Act 2005, summarised as follows:

  • You must be aged 18 or over
  • You must have mental capacity at the time you are making the Advance Decision. For more information have a look at our factsheet on ‘Mental Capacity’.

If you are refusing life-sustaining treatment, your Advance Decision:

  • Must be in writing.
  • Must be signed and witnessed.
  • Must clearly state that your decision applies even if your life is at risk.

Although not actually required, it can be helpful in some cases to include an explanation of your wishes, for example, stating that it is based on your religious beliefs. This provides context to your decision, which can be helpful if any disputes arise as to whether the Advance Decision represents your true feelings.

For an Advance Decision to take effect, your loved ones and your doctors must be aware of it. It is a good idea to tell your loved ones you have made an Advance Decision and discuss this with them. You should also inform your doctor and make sure a copy of your Advance Decision is lodged with your medical records.

In addition, if you make an Advance Decision, you should also keep it under review. Your feelings or wishes might change in future. If so, you should update or cancel your Advance Decision as soon as it no longer represents your intentions.

Seeking advice

You do not need a solicitor to make an Advance Decision, but it is recommended that you seek legal advice before going ahead. Not only does this help to explain the full implications of your exact wishes, it allows you to ensure all requirements are met for a valid Advance Decision. Remember that Advance Decisions take effect when you do not have the mental capacity to make a choice at the time so, it if turns out to be invalid, it will be too late to do anything about it.

Summary – Advance Decisions

  • Allow you to specify situations in which you would refuse certain medical treatment.
  • Take effect when the specified circumstances arise and where you do not have the mental capacity to decide upon your treatment at the time.
  • If properly made, are legally binding.
  • Can allow you to refuse life-sustaining treatment but cannot be used to request
    assisted suicide.

Advance Statements

What is an Advance Statement?

An Advance Statement can be used to set out your wishes regarding future care and/or medical treatment. In a similar way to Advance Decisions, Advance Statements are made in preparation for a possible loss of mental capacity in future, making your intentions known before the time when they might be needed.

However, there are two very important differences. Advance Statements:

  • Are not legally binding
  • Do not have any formal requirements, i.e. they can be made verbally and still be
    valid. However, we would recommend all Advance Statements be made in writing to
    prove, firstly, that you have made an Advance Statement, and secondly, what your
    wishes are.

Possible uses of an Advance Statement

Unlike an Advance Decision, an Advance Statement does not just set out the circumstances where you would refuse certain medical treatment; it can detail the care or treatment you would like to receive.
You might make an Advance Statement to set out your care preferences. This could include matters such as: where you would like to live if your needs change, or the type of care and support you would wish receive.

Your Advance Statement can also be used to list people, such as your partner, family or other loved ones, whom you wish to be involved in decisions about your care and treatment.

Even though Advance Statements are not legally binding, people making decisions on your behalf should take your wishes into account when considering matters which are covered in your Advance Statement. However, as they are non-binding, an Advance Statement can be overruled by healthcare professionals and anyone making a decision on your behalf.

Summary – Advance Statements

  • Allow you to specify your wishes or intentions relating to care or medical treatment.
  • Are not legally binding.
  • Do not have to be written or meet other formalities to be valid, although it is advisable to make any Advance Statement in writing.

Advance Decisions, Advance Statements and Lasting Powers of Attorney

Lasting Powers of Attorney (LPAs) often cover similar situations as those contained in an Advance Decision or Advance Statement.

Health and Care LPAs, in particular, involve giving one or more people, (your Attorneys) authority to decide on your behalf matters such as:

  • Your daily routine (e.g. what to eat and what to wear)
  • Medical treatment
  • Care home arrangements

You can also give your Attorneys the authority to grant or refuse consent to life-sustaining treatment on your behalf.This may lead you to ask: which is the best way for you to prepare such situations?

In our experience, more people choose to put Health and Care LPAs in place, than to make Advance Decisions or Advance Statements. However, it is possible for you to have all of these provisions in place if you wish.

Combinations of Advance Decision, Advance Statement and LPA

If you have made, or are going to make, any combination of Advance Decision, Advance Statement and Health and Care LPA, it’s important to consider how these different documents interact. You must ensure that they do not contradict each other, and that your Attorneys have the decision-making powers you want them to have.

If you are unsure of how the different provisions interact, consult a solicitor to help you interpret the various legal effects.

You should also let your Attorneys know that you have made an Advance Decision and/or Advance Statement, and discuss the content of these provisions with them. Depending on the Advance Decision or Advance Statement, these could bind or influence (respectively) any decisions they make on your behalf as your Attorneys.

It is also sensible to review any Advance Decision or Advance Statement you have made in the past and ensure that they continue to reflect your intentions.

Also, you should review – or discuss with a solicitor – any Advance Decisions or Advance Statements made before 1 October 2007, as this is when the statutory requirements under the Mental Capacity Act 2005 came into force.

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