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Living Wills (Advance Decisions)

Take control of your future healthcare decisions with a Living Will from Town & Country Law. A Living Will, also known as an Advance Decision, allows you to outline your medical wishes in case you become unable to communicate them yourself.

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Living Will Services

A Living Will is known under the Mental Capacity Act 2005 as an Advance Decision. We will refer to them as Living Wills throughout this briefing note, although this is the colloquial term it is the term clients will relate to. Clients may ask about them and whether they should make a Living Will rather than a health and welfare LPA or vice versa.

A Living Will allows a person who is aged over 18 and with capacity to refuse medical treatment that might be given at a time in the future when they lack the capacity to refuse the treatment. It means that the treatment specified in the Living Will can not lawfully be given. There are a number of important features that would need to be considered and discussed with a client who is considering instructing us to prepare a Living Will:

  • The Living Will must specify a specific treatment or circumstances where treatment is refused. Clarity is important as if there is any doubt the Living Will may not be valid.
  • It can not include a request to refuse basic care, offer of food or drink by both or a request for euthanasia.
  • It can not demand specific medical treatment, only refuse. No one can insist on a treatment that a healthcare professional may consider clinically unnecessary, futile or inappropriate.
  • It can not refuse treatment for a mental health disorder if detained under the Mental Health Act 1983.

Given the price difference clients may ask why they should do a Lasting Power of Attorney for Health and Welfare and not just a Living Will. There are differences between the two. Some clients will suit just an LPA, some just a Living Will and some both.

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HEALTH AND WELFARE LPA

  • A Health and Welfare LPA allows the donor to give his attorneys a general authority to refuse life-sustaining treatment
  • Attorneys must make decisions in the donor’s best interests and follow the checklist in section 4 of the MCA 2005
  • An LPA must follow stringent requirements for completion and it is then registered with the Office of the Public Guardian. Further copies can be obtained if lost.
  • Does not legitimise euthanasia

LIVING WILL

  • A Living Will needs to specify a particular treatment or circumstances and will only cover these specific issues
  • The Best interest principle does not apply. If the Living Will is valid and Applicable it must be respected, even if it goes against the person’s best interests in the eyes of a medical professional
  • The procedure is relatively informal and very similar to the formalities of a Will. It can lead to uncertainty over whether the Living Will exists.
  • Does not legitimise euthanasia

It is important to note that if a Health and Welfare LPA is made after a Living Will it will make the Living Will invalid if the LPA gives the attorney authority to make a decision about the same treatment. If the Living Will is made after the LPA and is valid and applicable to the circumstances the Living Will will take priority.

There may be circumstances where it is appropriate to sell both a Living Will and a Health and Welfare Lasting Power of Attorney. For example, when meeting terminally ill clients who are concerned about being able to refuse certain treatment in a short time frame but require a general power as well. The Living Will is effective immediately and can work while they await the registered LPA (Which can take up to 20 weeks once filed with the OPG).

A client may wish to discuss future treatments with their healthcare professional before we complete their documents to ensure we can be accurate.

Once the living Will has been executed it is important the client notifies their doctor and provides a copy of the same. Further they should tell their family to ensure people are aware of its existence.

 

Advance Statements

The MCA 2005 provides for the creation of an Advance Statement. This is different from the Living Will and Lasting Power of Attorney. It allows a person who has capacity to set out their wishes and feeling in writing about the care and treatment they would like to receive in the future.

This is a non-binding document and therefore does not have to be followed, however attorney’s under a Health and Welfare LPA should take this into account when making best-interest decisions under section 4(6) of the MCA 2005.

It is important to note that clients can express their wishes and instructions in the Lasting Power of Attorney. If this is done wrong it can bind the attorneys and not allow them to complete the clients’ actual wishes. It is difficult to change these once the LPA is registered. An Advance Statement can accompany a LPA and while the client continues to have capacity it can be changed, altered or destroyed if the circumstances change.

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What should my Will include?

Your Will can include anything you want. As a guide, when thinking about what you would put in your Will, consider the following:

  • Do you want to leave an amount of cash to any specific people?
  • Maybe you have some items with sentimental value that you want to go to a particular person?
  • Do you have children? If so, who would look after them?
  • What about pets? Who should look after these?
  • Who do you want to be responsible for carrying out your Will (your executors)?
  • Do you want to exclude anyone from your Will?
  • Do you want to set an age for children or grandchildren to inherit?
  • Who are going to be the main people to inherit your estate, perhaps your children?
  • If your children (or others) are your main beneficiaries (people who inherit), is this on equal shares or different?
  • Do you want to record your funeral wishes, and any requirements regarding organ donation in your Will?
  • Have you thought about leaving a gift to a charity?

Of course, this isn’t an exhaustive list. It’s just to help you start thinking about what you want in your Will.

 

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Frequently Asked Questions

A Living Will, also known as an Advance Decision or Advance Directive, is a legal document that allows you to state which medical treatments you wish to refuse if you lose the ability to communicate or make decisions. It ensures your healthcare providers and loved ones follow your preferences, particularly in situations involving life-sustaining treatment such as CPR or ventilation.

A Living Will only comes into effect if you are deemed unable to make your own medical decisions. To ensure your wishes are legally upheld, you may also want to consider a Lasting Power of Attorney for Health & Welfare, which allows a trusted person to make medical decisions on your behalf.

Yes, a Living Will is legally binding in England and Wales under the Mental Capacity Act 2005, provided it meets the following criteria:
✅ You created it while of sound mind and fully aware of your decisions.
✅ It is clear and specific about which treatments you refuse.
✅ If it refuses life-sustaining treatment, it is signed and witnessed.

Doctors and medical professionals must legally follow a valid Living Will. However, if you also have a Lasting Power of Attorney for Health & Welfare, your appointed attorney will have the final say on medical decisions.

A Living Will is a document that refuses specific medical treatments in advance, while a Lasting Power of Attorney (LPA) gives someone you trust the authority to make medical and care decisions for you if you lose mental capacity.

The key difference is flexibility:

  • A Living Will is fixed and only applies to the treatments you specify.
  • An LPA for Health & Welfare allows your attorney to make decisions based on the situation at the time.

Many people choose to have both to ensure their medical wishes are properly documented and followed.

Yes, you can update or cancel your Living Will at any time, as long as you have the mental capacity to do so. To make changes, follow these steps:
1️⃣ Create a new document with the updated instructions.
2️⃣ Destroy all previous copies to avoid confusion.
3️⃣ Inform your GP, family, and legal representatives of the changes.

If you want to make broader decisions about your health and care, you might also consider setting up a Lasting Power of Attorney for added legal security.

No, you do not legally need a professional to create a Living Will, but professional advice ensures it is correctly worded and legally valid.

A legal professional can also help you integrate your Living Will into a comprehensive estate plan, including Wills and Trusts, to prevent conflicts between different legal documents.

If you do not have a Living Will and become unable to make medical decisions, doctors will act in your best interestsbased on the circumstances.

Without a Living Will or a Lasting Power of Attorney for Health & Welfare, your family may have no legal authorityover your treatment decisions. In serious cases, disputes may require court intervention.

To ensure your wishes are followed, it’s best to have both a Living Will and an LPA in place.

No, a Living Will cannot refuse all medical care. It can only specify which treatments you do not want, such as life-support, resuscitation (CPR), or artificial feeding.

However, doctors will always provide essential comfort care, including pain relief and symptom management. If your Living Will includes life-sustaining treatment refusals, it must be signed and witnessed to be legally valid.

For broader control over healthcare decisions, many people choose to combine a Living Will with a Lasting Power of Attorney for Health & Welfare.

To make sure your Living Will is respected:
📌 Keep multiple copies and store the original safely.
📌 Give copies to your GP, family members, and caregivers.
📌 Register it with your medical records, so doctors can access it in an emergency.
📌 Ensure it is clearly written and complies with the Mental Capacity Act 2005.

You can also reinforce your medical decisions by creating a Lasting Power of Attorney for Health & Welfare, allowing a trusted person to act on your behalf if necessary.

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