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.
Precedents and commentary
- A precedent for an advance decision to refuse medical treatment under the MCA 2005 can be found in the Encyclopaedia of Forms and Precedents, volume 42(3), Wills and Administration (2008 reissue), form 53.
- A checklist of points to consider when drafting an advance decision to refuse medical treatment under the MCA 2005 can be found in the Encyclopaedia of Forms and Precedents, volume 42(3), Wills and Administration (2008 reissue), form 52.
- The Alzheimer’s Society has also produced information about advance decisions, available on their website.
- A precedent for a living will can be found in Hallam, Practical Will Precedents (loose-leaf), form F2h1. This form complies with the rules as regards life-sustaining treatment. Form F2h2 contains points for discussion with a client (both July 2011 reissue).
- Bielanska, Elderly Clients: A Precedent Manual, 5th edition (2016), chapter 12 on living wills contains various precedents including a refusal directive and treatment preferences.
- Ashton, Older Client Law Service (loose-leaf), section H, chapter 6, H  contains a simple living will for clients dealing with the withholding of medical treatment.
Last checked: 15 October 2018
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