This may be a question you ask for yourself or for your client. In fact, it is worth thinking about for both of you.

You may also have heard of the Living Will called the Advance Decision. This document allows you to state any medical treatments that you do not want to be given in the future, should you lack the mental capacity to make a decision for yourself.

The legal name is ‘Advance Decision to Refuse Treatment’ and this document is binding in both the UK and Wales, provided it meets certain requirements.

What does ‘capacity’ mean?

Capacity is the ability to make decisions for yourself. Capacity is decision and time specific, which means that on one day you may be able to make a decision while the next day you may not be able. This may be due to Dementia when the ability to remember things varies from day to day. You may also have capacity to make some decisions and not others.

• A person is recognised to lack capacity to make a decision if the following are present.
• They have an impairment of the brain such as Dementia, they are unconscious, have a mental health condition, brain injury or stroke.
• They cannot understand the information regarding the decision.
• They cannot retain the information given to them long enough to make a decision.
• They cannot remember information when making a decision.
• They cannot communicate the decision.

A point to bear in mind here is that the law states that a person must be assumed to have capacity until it can be proven to be otherwise.

Will an Advance Decision be legally binding?

As per the Mental Capacity Act (MCA) the Advance Decision is legally binding only if it is valid and applicable.

Should a healthcare professional be aware of your valid and applicable Advance Decision, and not take into consideration, they run the risk of being taken to court.

For an Advanced Decision document to be valid the person must be over 18 years of age and be able to understand the consequences of refusing medical treatment.

The Advanced Decision needs to state clearly which medical treatment is to be refused. General statements which are vague will not be recognised so being specific about what is being refused is essential.

Examples of treatment which can be refused

• Artificial nutrition
• Artificial hydration
• Breathing machines
• Cardiopulmonary resuscitation (CPR)
• Treatment may also be refused is the case of a stroke, cardio arrest or Dementia.

The Advanced Decision document must be witnessed and signed by yourself. If you are unable to sign it then you can indicate another person to do it on your behalf as long as this is done in the presence of the witness. The witness must see you sign the document and then sign it themselves.

Can you change your mind?

You can change your mind at any time – while you have the capacity to do so. If you want to change your plan you need to make a new Advanced Decision and destroy the old one. Also, it is a good idea to inform anyone involved in your care about your decision.

To cancel it completely you must destroy it and any copies which other people have in their possession. An Advanced Decision document is not valid should you withdraw it or cancel it.

To sum up

So, who should have a Living Will/Advanced Decision document? It is entirely up to you whether you have one for yourself, and it is also up to your client and their next of kin/family whether there is one drawn up.

Before you do this for yourself, you may want to take advice about whether it is valid in your own country and (if you live abroad) what the implications are for you in the UK, while you are working here.

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