What is an Advance Decision (“Living Will”)?
An Advance Decision to Refuse Treatment allows you to record any medical treatments that you do not want to be given in the future, in case you later become unable to make or communicate decisions for yourself. It can only be used if you cannot make or communicate a decision for yourself. It is commonly shortened to Advance Decision, and was previously known as a Living Will.
Advance Decisions are legally binding in England and Wales, as long as they meet certain requirements. This means that if a healthcare professional knows you have made an Advance Decision, they have to follow it. If they ignore an Advance Decision and provide treatment that you have refused then they could be taken to court.
You can use an Advance Decision to refuse any treatment, including life-sustaining treatment such as resuscitation, artificial nutrition and hydration, or breathing machines.
You cannot use an Advance Decision to:
- request or demand particular treatments
- ask for anything illegal, such as assistance to end your life
- refuse basic care that keeps you clean and comfortable
- appoint someone to make decisions on your behalf (choosing another person to make decisions about your health and care is done by making a Lasting Power of Attorney for Health and Welfare).
Making an advance plan or living will is very easy to do and can be done online at https://mydecisions.org.uk/.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) allows you to give someone you trust the legal power to make decisions for you in case you later lose capacity and are unable to make decisions for yourself.
There are two different types of LPA:
- An LPA for Property and Financial Affairs covers decisions about money and property
- An LPA for Health and Welfare covers decisions about health and care
The person given the power to make decisions is called an “attorney”. An LPA for Health and Welfare allows you to appoint one or more attorneys to make decisions for you. They can make decisions about anything to do with your health and personal welfare, including medical treatment and the type of care you receive. You must choose whether or not you want your attorney to be able to make decisions about life-sustaining treatment.
You do not need to have an LPA for Health and Welfare to make an Advance Decision.
You can have both an Advance Decision and an LPA for Health and Welfare. If you do, the one that you made more recently will take priority when a decision needs to be made about your treatment or care.
If you have made an Advance Decision before registering an LPA your attorneys will be able to override what is written in your Advance Decision, if you have given them the power to make the decision in question. However your attorneys must always make decisions that are in your best interests. This includes taking into account anything that you have said or written down, including an Advance Statement or Advance Decision.
If you have made an Advance Decision after registering an LPA your attorneys will not be able to override what is written in your Advance Decision. In this situation, if a decision needs to be made about something that you have not included in your Advance Decision, then your attorneys will still be able to act on your behalf. If you have both an Advance Decision and an LPA you should discuss your Advance Decision with your attorneys and give them a photocopy.
Enduring Power of Attorney
If you made an Enduring Power of Attorney (EPA) before October 2007, you do not need to include this on your Advance Decision form. This is because an EPA only covers finance and property and does not give an attorney power to make decisions about health and personal care.
There are three steps to making an LPA:
- Choose your attorneys
- Complete the form (available from the Office of the Public Guardian)
- Register the form with the Office of the Public Guardian
An LPA must be registered with the Office of the Public Guardian to be valid (this can take up to ten weeks). The Office of the Public Guardian is part of the government’s Ministry of Justice department. It manages the LPA registration process and has a register of all LPAs. It can also investigate if somebody has concerns about the way an attorney is acting.
You can get an LPA form in one of three ways: