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What we'll cover
What is a Living Will/Advance Directive?
Living Wills (also known as ‘Advance Decisions’, in England and Wales, and ‘Advance Directives’ in Scotland) are legal documents that allow you to set out how you wish to be looked after if you lose your mental capacity. A Living Will/Advance Directive allows you to set out your preferences for medical treatment including your refusals for certain types of medical treatments (eg life-sustaining measures). Living Wills/Advance Directives will only be used if you lack the mental capacity to make or communicate decisions for yourself.
When should I use a Living Will/Advance Directive?
Use this Living Will/Advance Directive if you:
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are of sound mind
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want to set out directions for how you will be cared for in the future if you cannot make decisions for yourself
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do not wish to be kept alive artificially in case you become extremely ill and also are no longer able to make decisions for yourself
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have discussed the matter with your GP and family
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don’t have doubts about what treatment you wish to receive
Sample Living Will/Advance Directive
The terms in your document will update based on the information you provide
I, of , was born on .
- I have the following identifying features:
- Being of sound mind and understanding the implications of refusing life sustaining treatment, I make this now as to my medical care and treatment directed to my family, my doctors and any other medical personnel, institution or authority in the event that I lose mental capacity as defined by the and cannot make health care decisions for myself.
I DIRECT as follows:
- My life shall not be artificially prolonged and no life sustaining treatment shall be administered in the following circumstances:
- In the above circumstances, I wish to be permitted to die naturally and to only receive such medical treatment as will alleviate any pain or distressing symptoms so as to make me comfortable, even if this has the effect of shortening my life.
- This decision does not affect my desire to be treated with care, concern and respect.
- I have carefully considered my advance decision and understand fully what it means. This statement has been made of my own free will and describes my specific wishes in the event of the circumstances set out above. .
- I have full understanding of the statements I have made in this . My decisions as to treatment and as detailed above are to apply even if my life is at risk. I confirm that I have understood the implications that this may shorten my life and I have discussed these implications with my GP. I will give my GP a copy of this and any reviews, amendments and cancellations.
- This shall remain in force until I revoke it or amend it.
This has been executed on____________________________(date)
Executed as a deed by | |
in the presence of two witnesses, neither of whom will benefit from my death: | |
Witness signature | |
Name of witness | |
Address | |
Relationship | |
and | |
Witness signature | |
Name of witness | |
Address | |
Relationship |
Reviewed and confirmed on____________________________(date) | |
Signed by | |
in the presence of the witness below, who will not benefit from my death: | |
Witness signature | |
Name of witness | |
Address | |
Relationship |
Reviewed and confirmed on____________________________(date) | |
Signed by | |
in the presence of the witness below, who will not benefit from my death: | |
Witness signature | |
Name of witness | |
Address | |
Relationship |
About Living Wills/Advance Directives
Learn more about making your Living Will/Advance Directive
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How to make a Living Will/Advance Directive
Making a Living Will/Advance Directive online is simple. Just answer a few questions and Rocket Lawyer will build your document for you. When you have all of the details prepared in advance, making your document is a quick and easy process.
To make your Living Will/Advance Directive you will need the following information:
Your details
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What are your details (eg name, address and date of birth)?
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What are your identifying features (eg tattoos, birthmarks or scars) and where can they be found?
The medical treatment being refused
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In what circumstances do you not wish to receive medical treatment (other than pain relief)? For example, do you not want to receive medical treatment if you are diagnosed with a terminal disease and are unable to take care of yourself?
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If you are seriously ill, how do you wish to be treated? For example, do you not wish to be resuscitated?
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Do you have a moral reason for making the Living Will/Advance Directive?
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If so, what is it?
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Other parties
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Did you discuss making a Living Will/Advance Directive with your GP, other healthcare professionals or relatives?
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If you discussed it with your GP, what are their details?
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If you discussed it with other healthcare professionals, what are their details?
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If you discussed it with your relative(s), what are their details?
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Common terms in a Living Will/Advance Directive
Living Wills/Advance Directives are used to set out how you wish to be medically treated if you lose capacity. To do this, typical provisions of a Living Will/Advance Directive include:
Your details
This section sets out your details (ie the details of the person making the Living Will/Advance Directive), including your:
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name
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address
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date of birth
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identifying features
It also confirms that you were of sound mind when you made the Living Will/Advance Directive and want your wishes contained within it to be respected by the relevant parties (eg doctors and relatives) in case you lose your mental capacity.
I DIRECT as follows
This section sets out your wishes regarding any medical treatment and highlights that you do not wish your life to be artificially prolonged. It specifically sets out in what circumstances you do not wish any life-sustaining treatments to be administered. It also states your wish to be permitted to die naturally and to only receive medical treatment to alleviate any pain or distressing symptoms in order to make you comfortable.
This section also states that you have made your Living Will/Advance Directive of your own free will and that you have carefully considered your decisions and understand them fully. It also includes a statement highlighting that you want your wishes to apply even if your life is at risk and that you understand that your life may be shortened as a result.
This section also includes the details of the person (or people) you have previously discussed making a Living Will/Advance Directive with.
Signature and reviews
Due to the nature of the Living Will/Advance Directive, it must be printed and physically signed in front of witnesses. This section, therefore, includes clear signature sections for yourself and your witnesses.
This Living Will/Advance Directive can be reviewed twice after being made and, as a result, includes two review signature sections.
Schedule 1
If you discussed making a Living Will/Advance Directive with your GP, Schedule 1 sets out their details (including name, address, practice name and phone number). Schedule 1 acts as a confirmation from your GP that they discussed making this document with you. Your GP needs to sign and date the confirmation before you sign your Living Will/Advance Directive.
Schedule 1 will not appear if you have not discussed making a Living Will/Advance Directive with your GP.
If you want your Living Will/Advance Directive to include further or more detailed provisions, you can edit your document. However, if you do this, you may want a lawyer to review or change the Living Will/Advance Directive for you, to make sure it complies with all relevant laws and meets your specific needs. Ask a lawyer for assistance.
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Legal tips for making a Living Will/Advance Directive
Speak to medical professionals and your family
Living Wills/Advance Directives are documents that set out when and how you do not wish to be kept alive artificially. This is a decision that is not to be taken lightly and you should discuss it not only with your GP and other relevant healthcare professionals but also with your family. Doing this not only helps inform your choice but also ensures that everyone is aware of and understands your wishes.
Make sure to regularly review your Living Will/Advance Directive
Due to their nature, Living Wills/Advance Directives are complex documents that may cause issues if they are not well-maintained. Make sure to review your Living Will/Advance Directive at regular intervals or whenever a major life event happens (eg the birth of a child or getting married). By doing this, you ensure that your Living Will/Advance Directive accurately reflects your wishes and helps prevent them from being challenged or ignored at a later date.
Understand when to seek advice from a lawyer
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about an LPA for health and welfare, CPA, WPA, or combined CPA and WPA, in which you give someone else the power to make decisions for you
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if you already have an LPA for health and welfare, CPA, WPA, or combined CPA and WPA, as you may invalidate one or both if you then sign a Living Will/Advance Decision
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if you want to create a Living Will/Advance Directive that sets out different wishes that those covered by this template (eg a wish to refuse only specific treatments, rather than the wish to refuse all life-sustaining treatments in given circumstances)
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about any issues arising out of this document
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Living Will/Advance Directive FAQs
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What is included in a Living Will/Advance Directive?
This Living Will/Advance Directive template covers the circumstances in which you do not want life-sustaining treatment if you:
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have lost the ability to make your own decisions (you have 'lost capacity’)
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are no longer able to care for yourself in relevant situations, and
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have one or more carefully considered conditions (eg a terminal or degenerative disease or permanent pain) from which you are unlikely to recover
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Why do I need a Living Will/Advance Directive?
If you lose your ability to make decisions due to an illness (such as dementia) or an accident that results in a brain injury, you can maintain some control over your affairs with a Living Will/Advance Directive.
In England and Wales, this often works in conjunction with a lasting power of attorney (LPA). In Scotland, this often works in conjunction with a continuing power of attorney (CPA), welfare power of attorney (WPA) or a combined CPA and WPA. In the absence of any instructions regarding how you wish to be treated, you may receive care that does not fit with your beliefs (social or religious). Use our LPA Drafting Service to make an LPA.
If you lose mental capacity and are unable to make decisions about your treatment or care, a medical professional will have the final say, unless you have a Living Will or relevant power of attorney in place. By making a Living Will you take steps to ensure that your wishes are respected.
People make Living Wills for different reasons. Some examples include if they:
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don’t want their life to be artificially prolonged
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wish to remain in control of themselves and their lives
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witnessed a loved one experience a bad death
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wish to make things easier for their families
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have been diagnosed with a terminal and/or serious illness
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want to make things easier for their loved ones
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What is the difference between an Advance Decision and an advance statement?
An Advance Decision/Advance Directive is a legal document in which you can specify any medical treatments that you wish to refuse. By doing this, you inform doctors and other medical staff of your decision in case you lack the mental capacity to state your refusal at the time (eg because you have advanced dementia, brain damage or are unconscious).
An Advance Decision/Advance Directive should clarify the circumstances under which you do not wish to receive specified treatments, as far as possible. It only allows you to refuse certain treatments (eg refuse CPR, ventilation or a blood transfusion); not request them. Note that it can be used to refuse treatment even if doing so might lead to your death but it cannot be used to ask for your life to be ended. Unlike an advance statement, an Advance Decision is legally binding in England and Wales if it is correctly created. In Scotland, an Advance Directive is currently not legally binding.
An advance statement is a separate document, which sets out how you wish to be cared for if you are unable to state your preferences due to a lack of mental capacity. It can include a range of matters including dietary requirements and whether you would prefer to be at home or in a medical facility. It may also state any religious beliefs you hold which could affect the treatment you receive. It can also cover your priorities regarding medical treatment, for example, whether you wish to prioritise comfort or life-prolonging treatments should a choice arise. Advance statements are not legally binding (in England, Wales or Scotland) but doctors and others caring for you must take them into account.
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What should a Living Will include?
You can use your Living Will to refuse different types of medical treatments (eg blood transfusions or amputations). This also includes any life-sustaining treatments (ie treatments intended to prolong your life).
Examples of life-sustaining treatments include:
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cardiopulmonary resuscitation (CPR) - this may be used to attempt to revive you if your heart stops beating
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mechanical ventilation (including invasive ventilation (ie intubation) and non-invasive ventilation (ie CPAP)) - this may be used if you cannot breathe by yourself
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assisted nutrition and hydration (eg being fed by tube) - this may be used if you are unable to eat or drink (eg because you are in a coma)
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certain antibiotics courses - these may be used to treat (life-threatening) infections
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Is an Advance Decision binding?
If you wish to refuse life-sustaining treatment as part of an Advance Decision, to make your decision binding you need to follow the procedures in the Mental Capacity Act 2005. In England and Wales, to make an Advance Decision regarding life-sustaining treatment binding you must:
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be over 18 and have mental capacity to make, understand and communicate your decision at the time of making the Advance Decision (more below)
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ensure that it is in writing;
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sign and date the document - in the presence of a witness who must also sign the document
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be as clear as possible about the circumstances in which you do not wish to receive treatment (eg explain that you wish to refuse resuscitation required due to your diagnosed terminal illness - this will not then apply to resuscitation required due to other causes, for example, trauma following a road accident)
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include a statement that clarifies that you would like the Advance Decision to apply even if this puts your life at risk as a result (this statement is covered by the section in this document entitled 'moral reasons for making this living will')
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have made the Advance Decision of your own free will, without pressure or harassment from others
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not have done or said anything that contradicts the Advance Decision after you made it (eg saying that you've changed your mind)
You can also (optionally) ask your GP to sign a statement confirming they are aware of your Advance Decision. Either way, make sure that your GP, any relevant medical staff and/or your relatives know you have an Advance Decision and where to find it.
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Is an Advance Directive binding?
In Scotland, Advance Directives are currently not legally binding. This is because Advance Directives have not been tested in court. However, a valid and applicable Advance Directive would likely be upheld by the courts if it was challenged.
This is because, under the Adults with Incapacity (Scotland) Act 2000 (the law outlining how someone lacking capacity will be treated), the wishes of an adult without mental capacity should be considered. This means that, while Advance Directives are currently not legally binding in Scotland, healthcare professionals should take them into account when treating someone. Further, family and friends can use an Advance Directive as evidence of the person’s wishes.
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What is mental capacity?
Mental capacity refers to the ability to make specific decisions when needed. Someone will have mental capacity if they understand a decision, why they need to make that decision and their decision’s likely outcome.
In England and Wales, mental capacity is governed by the Mental Capacity Act 2005 sets out when someone is presumed to have mental capacity. Specifically, people are presumed to have capacity unless proven otherwise. To establish whether someone lacks mental capacity, the following 2 stage-test should be considered:
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Does the person have an impairment of their mind or brain (whether as a result of an illness, like dementia, or external factors, like alcohol or drugs or trauma)?
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Does this impairment mean the person is unable to make a specific decision when they need to?
In Scotland, the Adults with Incapacity (Scotland) Act 2000 addresses mental capacity. Under this Act, someone is deemed to lack mental capacity if they:
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have a mental disorder or severe communication difficulty because of a physical disability (eg dementia, learning disabilities, mental illness or brain damage), and
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that mental disorder or severe communication difficulty made the person unable to make the decision or decisions in hand (ie if they are incapable of making decisions, acting on decisions, communicating decisions, understanding decisions or remembering decisions)
Generally, a person will lack mental capacity if they cannot:
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understand information relevant to the decision
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retain and remember the information
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use (eg evaluate) the information as part of the decision-making process
However, someone may lack capacity to make certain decisions but have the capacity to make others. Moreover, a person’s mental capacity can change over time.
For more information on mental capacity in England and Wales, read Mental capacity and medical consent. For more information on mental capacity in Scotland, see the Scottish Government’s guidance on assessing mental capacity.
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Can a Living Will/Advance Directive be challenged?
While an Advance Decision is legally binding in England and Wales, it can be challenged. Advance Decisions can be challenged if there is a reasonable belief that you may have changed your mind. This could be due to medical advances, changes in your own situation or because the document was written a long time ago.
As a result, it is important for you to regularly review your document and communicate your decisions to all relevant parties (eg your GP and family).
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Is a Living Will/Advance Directive the same thing as a DNR?
A Do Not Resuscitate (DNR) form is not the same thing as a Living Will/Advance Directive.
DNRs are completed by medical professionals (often doctors) to prevent someone from receiving CPR. DNRs inform others that a decision has been made not to attempt CPR and are a way to ensure people aren’t given CPR inappropriately.
A DNR form may also be referred to as ‘DNAR’ (short for ‘do not attempt resuscitation’) or ‘DNACPR’ (short for ‘do not attempt cardiopulmonary resuscitation’).
For more information on DNRs, see the NHS’ guidance.
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