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FAQ: Living wills, advance decisions, advance directives and advance statements

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This Law Society Library FAQ is on the topic of of living wills, advance decisions, advance directives and advance statements.

The Mental Capacity Act 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 Mental Capacity Act 2005 and Chapter 9 of the supporting Code of Practice, available on the Justice website.

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. See Chapter 9 of the Code of Practice which 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 which may be useful for clients. They can be downloaded from the Justice website.

A precedent for an advance decision to refuse medical treatment under Mental Capacity Act 2005 can be found in the Encyclopaedia of Forms and Precedents vol. 42(3) (2012 reissue), Form 53. Checklist of points to be considered when drafting an advance decision to refuse medical treatment under the Mental Capacity Act 2005 can be found in the Encyclopaedia of Forms and Precedents vol. 42(3) (2012 reissue), Form 52.

The Alzheimer’s Society has also produced an advance decision, available on their website.

A precedent for a living will can be found in Withers, Practical Will Precedents (looseleaf, 1987-), Form F2h1. This form complies with the rules as regards life-sustaining treatment. Form F2h2 contains points for discussion with a client.

Bielanska, Elderly Clients: A Precedent Manual, 5th ed (2016), chapter 12 on advance decisions contains various precedents including treatment preferences and an advance statement on maximum treatment.

Copies of all documents listed here can be supplied by e-mail via Lawdocs, our document supply service. Click here for more details.

For further help and enquiries please contact the Law Society Library on 020 7320 5946 or e-mail us

Disclaimer

This FAQ is compiled by the Law Society Library. 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.

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