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What is an Advanced Decision (Living Will) and do you need one?

What is an Advanced Decision (Living Will) and do you need one?

Prior to the Mental Capacity Act 2005 an Advanced Decision was called a Living Will. A Living Will did set out your wishes but was not binding.

The MCA 2005 introduced a change by way of an Advanced Decision. This document IS now binding on all persons, including medics, hospital staff, social workers etc. Any person going against the wishes of an Advanced Decision commits a criminal act and may be prosecuted.

If you made a Living Will prior to 2007 (the year the MCA 2005 came into force) then it is not yet binding simply because legislation changed and you will need to create an Advanced Decision to get the binding effect.

An Advanced Decision also differs from a hospital DNR.

So what is an Advanced Decision?

An Advanced Decision allows you to predetermine all circumstances in which you would wish to refuse treatment in future. The more specific you can be the better. It is not enough to simply say ‘I refuse life sustaining treatment if I develop dementia’. Remember third parties can be prosecuted if they go against the document, and if you were in early stages of dementia, standard treatments could be considered ‘life sustaining’ in a good way.

Likewise, if the wishes are too generic and do not accurately fit the circumstances, it may give third parties an argument to say the document does not apply and so your wishes could end up being ignored and the document rendered useless for purpose.

Therefore, an Advanced Decision sets out very specific circumstances in which you would want your life to end naturally, without medical intervention, provided specific conditions are met.

Can it be used to request treatments

The simple answer is No. You can request certain treatments be given in set circumstances but they merely amount to a wish. Medics cannot be bound or forced to provide medication or treatment at the request of a non-medic or health care professional.

I have a Health LPA therefore I don’t need an Advanced Decision

That very much depends on your wishes. If you have prepared an Advanced Decision or Living Will that suggests you have strong wishes regarding end of life care. A Lasting Power of Attorney would provide your Attorneys or Medics with the authority to override your wishes IF you registered the Lasting Power of Attorney AFTER signing the Advanced Decision.

Create Advanced Decision online

Of course, there is no substitute for bespoke legal advice, but if you do not have a Living Will in place currently and your circumstances are straightforward, then it is entirely possible to create your own online by following the relevant side links.

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