A Living Will, or Advance Decision, is a legal document that sets out your wishes regarding medical treatment in case you lack the mental capacity to refuse treatment yourself in the future when needed.

Reasons you may lack mental capacity at some point include:

• An illness such as Alzheimer’s Disease
• A condition such as a stroke
• A brain injury

Advance Decisions can set out your wishes about things like:

• Certain listed medical treatments you want to refuse and in what circumstances
• Whether you want to refuse life sustaining treatment
• Circumstances in which you would not want to be resuscitated

Like other lifetime planning matters such as making a Will, it is a common misconception that you only need to make an Advance Decision if you are elderly. However, life does not discriminate and any person of any age could benefit from making an Advance Decision. For example, in case you have an accident that temporarily leaves you unconscious.

Reasons you may want to make an Advance Decision include:

• You have been diagnosed with a life-limiting illness and you are starting to think about your ongoing care and issues that might arise later down the line
• You have strong beliefs about the types of treatment you do and do not want, such as blood transfusions or tube feeding
• You want to save your loved ones from having to make emotionally challenging decisions on your behalf, such as whether to withdraw life sustaining treatment

Your Living Will or Advance Decision should fulfil certain legal requirements to be valid. We will ensure that these requirements are followed so you can focus on the content. To make an Advance Decision, you need to:

• Decide what medical treatment you want and do not want to consent to and in what circumstances
• Discuss your wishes with your family, close friends and anyone who is involved with your care
• Get your Advance Decision signed and dated in the presence of a witness
• Get your witness to sign the document
• Give a signed and witnessed copy of your Advance Decision to your GP, care providers and anyone else close to you

It is recommended that you have at least two witnesses. They must be a ‘competent’ adult over 18 years old. Typically, it is best practice to make sure your witnesses are not a relative, partner, anyone who might inherit from you after you die, or your Attorney under a Lasting Power of Attorney.

It is a good idea to review your Advance Decision every few years and whenever there is a change in your circumstances. Even if your wishes do not change, medical professionals are more likely to trust that a recent Advance Decision accurately reflects your wishes as opposed to a document that is many years old. If they suspect that your Advance Decision is out of date and does not reflect your wishes, they may decide not to follow it.

Mental capacity means the ability to make your own decisions, from small things such as what to eat for breakfast to significant decisions such as whether to buy or sell your home.

The Mental Capacity Act 2005 (MCA) sets out the law on mental capacity. Under the Act, someone who lacks capacity cannot:

• Understand information about a particular decision
• Retain that information long enough to make a decision
• Weigh up information to make a decision
• Communicate their decision, either verbally or through some other means such as sign language

Mental capacity can be temporary (for example, someone who is unconscious lacks mental capacity but may regain capacity when they wake up) or permanent.

The MCA can cover any kind of decision. It can cover day-to-day decisions about things like:

• What to buy during the weekly shop
• What to wear that morning
• What social activities to take part in

It can also cover serious, life-changing decisions such as:

• Whether to move into a care home
• Whether to have surgery
• To make a Will

Just because a person can make decisions about things like what to wear, does not mean they have the capacity make decisions about their medical treatment. Mental capacity must be assessed individually for each particular decision.

When assessing capacity under the MCA, the assessor must bear in mind 5 key principles:

1. A person is always assumed to have capacity unless proved otherwise
2. A person should always be helped to make a decision before they are declared incapacitated
3. Just because a decision is unwise, does not mean a person lacks capacity
4. A person’s best interests should be at the heart of every decision made on their behalf
5. Before making a decision, always ensure there is not a less restrictive way to achieve the required outcome

When it comes to applying an Advance Decision, it is usually medical professionals who will undertake a mental capacity assessment.

An Attorney under a Lasting Power of Attorney or a Court of Protection appointed Deputy can also make decisions on your behalf. However, if an Advance Decision is in place, your Attorney or Deputy must comply with your wishes.