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What is an advance decision?
An advance decision, sometimes called a living will, lets you refuse specific medical treatment in the future. It only applies if you later lose the capacity to make or communicate your own decisions.
In England and Wales, an advance decision can be legally binding if it is valid and applicable to the situation. It must be made by someone who is an adult and has mental capacity at the time of making it.
Can it be made as part of a lasting power of attorney?
An advance decision is not the same as a lasting power of attorney, but the two can be used alongside each other. You do not usually “make” an advance decision as part of a lasting power of attorney form.
Instead, you create an advance decision separately and, if you wish, you can refer to it in your LPA paperwork. This can help make your wishes clear to your attorney and to healthcare professionals.
How do an advance decision and health and welfare LPA work together?
A health and welfare lasting power of attorney lets your chosen attorney make decisions about your care and treatment if you lose capacity. This can include decisions about medical treatment, daily care, and where you live.
If you have both an advance decision and a health and welfare LPA, they must be consistent. An advance decision can refuse treatment, and that refusal is normally binding if it meets the legal requirements.
Your attorney cannot usually override a valid advance decision that applies to the situation. However, if the wording is unclear or the decision does not cover the treatment in question, there may be room for interpretation.
What should you include?
If you want to make an advance decision, be specific about the treatment you want to refuse. It is important to explain the circumstances in which the refusal should apply.
For refusals of life-sustaining treatment, extra formalities apply. The advance decision must be in writing, signed, and witnessed, and it must state clearly that it applies even if life is at risk.
It is also sensible to tell your attorney, GP, and close family where the document is kept. This can reduce confusion in an emergency and help your wishes be followed quickly.
Getting advice and checking the wording
Because advance decisions and LPAs can affect serious medical choices, it is wise to get legal or professional advice. This is especially important if you want both documents to work together smoothly.
Health and welfare decisions can be complex, and mistakes in wording may make an advance decision invalid. Checking the document carefully can help ensure your wishes are respected when it matters most.
Frequently Asked Questions
Advance decision about treatment in lasting power of attorney UK is a legally recognised way for an adult with mental capacity to refuse specific medical treatments in the future if they lose capacity. In England and Wales, it is separate from a lasting power of attorney and is used to set out treatment refusals that healthcare professionals must follow if the legal requirements are met.
Advance decision about treatment in lasting power of attorney UK records treatment refusals made in advance by the person themselves, while a lasting power of attorney for health and welfare appoints someone else to make health and welfare decisions if the person lacks capacity. If both exist and apply to the same issue, the advance decision usually takes priority for the treatment it covers, provided it is valid and applicable.
Any adult with mental capacity can make advance decision about treatment in lasting power of attorney UK, provided they understand the nature and effect of the decision. The person must be able to decide for themselves, understand the treatment being refused, and set it out clearly enough for it to be followed later.
Advance decision about treatment in lasting power of attorney UK can refuse specific medical treatments, such as particular medicines, surgery, ventilation, or resuscitation, depending on how it is written. It cannot be used to demand a specific treatment, and the refusals should be clear and precise enough for clinicians to understand when they apply.
Advance decision about treatment in lasting power of attorney UK should be written clearly, identifying the treatments to be refused, the circumstances in which the refusal applies, and any life-sustaining treatment refusal in the required formal way. It is wise to include names, dates, signatures, and a statement that the decision is to apply if the person loses capacity.
Yes, if advance decision about treatment in lasting power of attorney UK refuses life-sustaining treatment, it must be in writing, signed by the person, and witnessed. For other refusals, writing is strongly recommended so it can be relied on by healthcare professionals, even where the law may allow an oral decision in some circumstances.
A witness in advance decision about treatment in lasting power of attorney UK confirms that the person signed the document voluntarily and appeared to understand what they were doing. A witness is legally required where the advance decision refuses life-sustaining treatment, and having one can help reduce disputes about authenticity later.
Yes, advance decision about treatment in lasting power of attorney UK can refuse life-sustaining treatment if the refusal is in writing, signed, and includes a clear statement that the decision applies even if life is at risk. If these formalities are not met, the refusal may not be legally effective for life-sustaining treatment.
In general, advance decision about treatment in lasting power of attorney UK takes precedence over a health and welfare attorney on the specific treatment it validly and clearly refuses. However, if the advance decision is not valid, not applicable, or does not cover the situation, the attorney may be able to decide instead within their authority.
Advance decision about treatment in lasting power of attorney UK may not be valid if the person later changes their mind, says or does something inconsistent with it, or loses capacity before making it. It may not be applicable if the circumstances, illness, or treatment are different from what was anticipated, or if the document is too vague to cover the situation.
Yes, advance decision about treatment in lasting power of attorney UK can be changed or withdrawn at any time while the person still has mental capacity. The safest approach is to put any changes in writing, destroy old versions if possible, and tell healthcare professionals, family, and any attorney about the updated decision.
Advance decision about treatment in lasting power of attorney UK should be given to the person’s GP, hospital team if relevant, close family members, and any health and welfare attorney. It is also sensible to keep a copy accessible in an emergency and make sure those involved know where it is stored.
If advance decision about treatment in lasting power of attorney UK is valid and applicable, clinicians must follow it instead of making a best interests decision about the refused treatment. A best interests decision is only used where there is no valid and applicable advance decision covering the treatment in question.
Advance decision about treatment in lasting power of attorney UK is a concept based on the law of England and Wales and may not operate in the same way in Scotland or Northern Ireland. Different legal rules apply in those jurisdictions, so local legal advice should be sought if the person may receive care there.
Advance decision about treatment in lasting power of attorney UK can sometimes cover certain treatments, but the rules are more complex where mental health legislation applies. Some treatment decisions for mental disorder may be overridden in particular circumstances, so specialist advice is advisable if the document is intended to address mental health treatment.
No, advance decision about treatment in lasting power of attorney UK is legally binding if valid and applicable, while an advance statement is usually a non-binding expression of wishes and preferences. An advance statement can guide professionals, but it does not have the same legal force as a properly made advance decision.
Advance decision about treatment in lasting power of attorney UK can apply in emergencies if the refusal is valid, applicable, and known to the treating team. In urgent situations, clinicians may treat first if they reasonably do not know about the document, so clear communication and accessibility are important.
Common mistakes include vague wording, failing to witness a life-sustaining treatment refusal, not stating that the refusal applies even if life is at risk, and not updating the document after circumstances change. Another frequent issue is failing to tell relevant people, which can make it hard to locate and use the document in time.
It is not legally required, but advance decision about treatment in lasting power of attorney UK is often best prepared with help from a solicitor, GP, or other experienced professional if the choices are complex or life-sustaining treatment is involved. Professional advice can help ensure the document is lawful, clear, and practical.
Advance decision about treatment in lasting power of attorney UK should be stored where it can be found quickly in an emergency, such as with a GP record, with a trusted family member, or in a clearly labelled folder at home. Copies should be shared with any attorney, close carers, and anyone likely to be involved in future treatment decisions.
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