Advance Decisions and Statements

A Will is a crucial legal document for making your post-death intentions known, but it cannot be used to set out your wishes for the medical care you wish to receive while still alive. Advance Decisions and Advance Statements, however, are legal documents you can use to make your preferences clear should certain medical situations arise. They are sometimes referred to as ‘Living Wills’, though this term can be misleading.

This help guide explains what Advance Decisions and Advance Statements are, what the differences are between them and which kinds of choices they can be used to make.

Advance Decisions

What is an Advance Decision?

An Advance Decision is a legal document used to specify situations where you would wish to refuse particular kinds of medical treatment in the future. It would take effect if you were to require medical treatment but were not in a position to consent to it yourself.

This might be because you had suffered an accident, were unconscious, or were suffering from a condition that meant you were 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 allows you to legally record those choices while you are able to make them, in case you are not able to communicate them in the future.

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

For example, you might wish to use an Advance Decision to refuse treatment such as:

• Being resuscitated if your heart stops
• Receiving a blood transfusion
• Being put on a life-support machine
• Undergoing kidney dialysis
• Receiving an organ transplant
• Undergoing chemotherapy
• Being fed artificially

In many cases, an Advance Decision is used to specify the circumstances in which you would want to refuse life-sustaining treatment. However, you cannot use an Advance Decision to request or authorise assisted dying.

You also cannot use an Advance Decision to:

• Refuse the offer of food or drink by mouth
• Refuse medical treatment to make you comfortable, such as pain relief
• Ask for specific medical treatments to be performed
• Nominate someone else to make decisions on your behalf (this must be done with a Lasting Power of Attorney)

Are Advance Decisions legally binding?

Advance Decisions are legally binding, assuming they meet certain criteria.

The Advance Decision must have been written when you were over the age of 18 and had the mental capacity to do so. The doctors treating you must also be confident that you haven’t changed your mind since it was made.

Your Advance Decision also needs to be:

• In writing
• Signed and witnessed
• Clear about the specific treatments you wish to refuse
• Clear about the circumstances you wish to refuse treatments in
• Clear that you wish your decision to be followed even if it means your life will be at risk

Although it is not legally required, in some cases it can be helpful to include an explanation for your wishes (for example, refusing certain treatments due to religious beliefs). This provides context to your decision and can be helpful should 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’s a good idea to tell your loved ones that you have made an Advance Decision and discuss the contents with them. You should also tell your doctor and make sure a copy of the Advance Decision is lodged with your medical records.

We recommend that you update an Advance Decision every two years, or any time your circumstances change.

It’s also important to note that if you made an Advance Decision or Advance Statement before 1 October 2007 you should review it or discuss it with a solicitor, as this is when the statutory requirements under the Mental Capacity Act 2005 came into force.

Seeking advice

If your Advance Decision is important to you, you will want to take all steps possible to ensure it would be considered legally binding in a life-threatening situation. Though you do not need a solicitor to make an Advance Decision, seeking legal advice may mean your document is more likely to be considered valid.

You might also find it helpful to speak to your doctor before making an Advance Decision, as they will be able to ensure you understand the full medical implications of your decisions.

Speaking to legal and medical professionals during the course of making your Advance Decision can also demonstrate that you had full mental capacity at the time of it being made.