The Law Society’s Library discusses advance decisions or living wills, and sources of commentary and precedents.
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The Mental Capacity Act 2005 (MCA 2005) introduced statutory provisions (known as advance decisions) allowing an individual to decide to refuse medical treatment before they lose capacity to do so. For more information see the MCA 2005 and chapter 9 of the supporting code of practice, available on Gov.uk.
There is no prescribed form to be used for a person wishing to make an advance decision to refuse treatment. Nor are there any particular formalities about the format of an advance decision. It can be written or verbal – unless it deals with life-sustaining treatment, in which case it must be written, and specific rules apply. Chapter nine of the code of practice provides specific guidance on this and suggests that a written document may be helpful in all cases to prove that an advance decision exists.
Detailed commentary on advance decisions can be found in Dew, Trust and Estate Practitioner’s Guide to Mental Capacity (2007), chapter 16.
The Office of the Public Guardian produces a number of Mental Capacity Act booklets that may be useful for clients. They can be downloaded from Gov.uk.
Last checked: 15 October 2018
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While every effort has been made to ensure the accuracy of the information in this article, it does not constitute legal advice and cannot be relied upon as such. The Law Society does not accept any responsibility for liabilities arising as a result of reliance upon the information given.