Living Wills: Advance Decisions to Refuse Treatment

If you could no longer communicate, would doctors know which treatments you would refuse? A properly prepared Living Will records your decisions in advance, helping ensure your voice is still heard when you cannot speak for yourself.

Why you need a Living Will

Imagine being unable to speak for yourself in a hospital bed, while people who love you, and people who have never met you, try to work out what you would have wanted. Some of them will guess right. Some won’t. A Living Will means nobody has to guess at all.

A Living Will is a decision you make now to refuse specified medical treatment in the future, for a time when you’re unable to make or communicate that decision yourself. It’s easy to file this under “end of life planning” and move on, but that undersells what it actually does. It isn’t only about how your life might end. It’s about making sure your own decisions, made while you’re able to think clearly about them, are the ones that count later, rather than leaving that job to someone else.

Its proper legal name is an Advance Decision to Refuse Treatment. Most people simply call it a Living Will.

If you’d like to talk through whether one is right for you, get in touch with Wise Owl Wills for a guided appointment, by phone or with a free home visit across Greater Manchester.

What is a Living Will?

A Living Will is a legally significant document in England and Wales, made under sections 24 to 26 of the Mental Capacity Act 2005. It lets you make an Advance Decision to Refuse Treatment. Its purpose is specific: it allows you to refuse treatment, not to insist upon it.

To make one, you must:

be at least 18 years old
have the mental capacity to make the decision at the time you make it
be able to identify the specific treatment you wish to refuse
be able to identify the circumstances in which that refusal is meant to apply

A Living Will that is both valid and applicable has exactly the same legal effect as a refusal made by someone who currently has capacity and is refusing that treatment in person.

Is a Living Will legally binding?

Yes, provided the Advance Decision is both valid and applicable to the treatment being proposed and the circumstances that have actually arisen. Where those tests are met, healthcare professionals must respect it, even where withholding the refused treatment could result in death.

It’s only binding, though, where those statutory tests of validity and applicability are genuinely satisfied. A vague or poorly drafted document can fail on either count, which is exactly why the wording matters as much as the intention behind it.

When does my Living Will take effect?

An Advance Decision only operates once you lack the capacity to consent to or refuse the treatment in question, at that specific time. If you still have capacity, you don’t need it at all, because you can simply tell medical staff what you want directly.

Capacity, as with a Health and Welfare LPA, is assessed decision by decision and moment by moment, not as a general label applied to a person. A Living Will exists precisely for the moment when you can’t communicate your wishes yourself. It stops a doctor from having to guess, or from proceeding on a default assumption, when you’re not able to tell them.

Why make a Living Will?

A Living Will isn’t just for someone who is terminally ill or facing a catastrophic injury, although it matters enormously in those situations too. It may need to be relied on if you:

start to develop dementia
suffer a stroke
sustain a serious brain injury
fall into a coma or prolonged unconsciousness
develop a degenerative neurological condition
become seriously or terminally ill
hold strong personal or religious objections to particular treatments
want to avoid specific interventions in specific circumstances

Do I need to be ill before making a Living Will?

No. In fact, the opposite is usually true. Making a Living Will while you’re perfectly well means you’re thinking clearly, under no pressure, and not influenced by fear or a current diagnosis. It also means the document is ready long before it might ever be needed, rather than being rushed together after a health scare when time and clarity are both in short supply.

What medical treatments can I refuse?

With a Living Will, you can make an Advance Decision to refuse particular medical treatments, potentially including:

cardiopulmonary resuscitation
mechanical ventilation
artificial nutrition and hydration
particular operations
blood transfusions
dialysis
antibiotics
other medication
other specified medical interventions

It doesn’t have to involve life-sustaining treatment at all. You might, for instance, refuse a blood transfusion on religious grounds even where your life isn’t immediately at risk, or decline a particular type of operation you find unacceptable for personal reasons. The whole point is that you’re setting out a refusal in advance, for a time when you won’t be able to make that decision yourself.

That said, Living Wills are especially well suited to situations where life-sustaining treatment might otherwise be given against your wishes. Life-sustaining treatment can take forms that aren’t always obvious, including artificial nutrition and hydration and various forms of respiratory support.

It is important to be precise about what you wish

The strength of a Living Will lies in specifying both the treatment you’re refusing and the circumstances in which you’re refusing it. A refusal that names a treatment but not the circumstances, or the reverse, is far more likely to be unclear when it actually matters. Precision here isn’t bureaucratic box ticking. It’s what allows a doctor, possibly years later, faced with a real decision, to understand exactly what you meant.

Can I decide when the refusal should apply?

Yes, and the circumstances you specify matter just as much as the treatment itself. You might, for example, want to refuse a particular treatment if there’s no realistic prospect of meaningful recovery, while being entirely willing to accept exactly the same treatment if it’s needed after routine surgery with a good outlook. Being clear about when your refusal applies, and when it doesn’t, is what stops a well intentioned document from being misapplied in a situation you never actually meant to cover.

What is life-sustaining treatment?

Life-sustaining treatment means whatever a healthcare professional considers necessary to keep you alive in the particular circumstances you’re in. It can include:

CPR
ventilation
dialysis
artificial nutrition and hydration
surgery
antibiotics, in some circumstances

The same treatment can fall on either side of that line depending on context. Antibiotics might be routine in one situation and genuinely life-sustaining in another, for a frail patient with a serious infection. The NHS itself lists CPR, ventilation and antibiotics among examples of life-sustaining treatment. It’s worth being clear on this: life-sustaining treatment doesn’t just mean being permanently attached to a life support machine. It covers a much wider, and sometimes surprising, range of everyday medical care.

What special rules apply to refusing life-sustaining treatment?

A Living Will that refuses life-sustaining treatment has to meet extra legal formalities. It must:

be in writing
be signed by you, or by someone else in your presence and at your direction
be witnessed, with the witness also signing it
expressly state that the refusal applies even if your life is at risk

Missing any one of these can mean a genuinely intended refusal simply doesn’t take effect when it’s needed. This is exactly the kind of detail worth getting right with proper guidance, covering things like how to word the refusal precisely, what circumstances to specify, how it should sit alongside any Health and Welfare LPA you have or plan to make, and how to avoid ambiguity that could leave your wishes open to interpretation. Talk to Wise Owl Wills about getting these formalities right from the outset.

Can a Living Will refuse CPR?

Yes, CPR can be expressly refused through a Living Will, but because it counts as life-sustaining treatment, the additional formalities above apply in full. CPR itself involves chest compressions, and often rescue breaths, defibrillation or medication, given in an attempt to restart the heart or breathing. If you’re thinking about refusing it, it’s genuinely worth discussing the clinical realities with a healthcare professional first, so your decision is made with a clear understanding of what you’re actually refusing.

Is a Living Will the same as a DNACPR or ReSPECT plan?

Not quite, though the three are often confused.

DNR, DNACPR, ReSPECT and Living Wills, what’s the difference?

Each of these documents serves a different purpose, and they carry different legal weight. Of the three, a Living Will is the most legally effective way to make your wishes clear and binding when it comes to refusing treatment.

Living Will / Advance Decision

Your own legally binding refusal of specified treatment, provided it’s valid and applicable.

DNACPR

A clinical record, usually completed by a doctor, stating that CPR should not be attempted. The NHS is explicit that a DNACPR form itself is not legally binding in the way an Advance Decision is.

ReSPECT plan

A broader emergency care planning process that records recommendations and preferences for care in a crisis. It can refer to the existence of a Living Will, but it isn’t the same legal instrument, and it doesn’t carry the same binding force.

What can’t a Living Will do?

A Living Will has real limits, and they exist for good reason.

Can I use a Living Will to demand treatment?

No. A Living Will can refuse treatment, but it cannot compel healthcare professionals to provide treatment they consider clinically inappropriate.

Can I use it to request euthanasia or assisted suicide?

No. A Living Will lets you refuse treatment that might otherwise keep you alive, but it cannot be used to ask for active steps to end or hasten your death. Assisted suicide remains a criminal offence in England and Wales under the Suicide Act 1961. This is an area of live parliamentary debate, with a bill on assisted dying for terminally ill adults currently making its way through Parliament, but as things stand, the law has not changed, and a Living Will is not the mechanism for it in any event.

Can I refuse basic comfort care?

Basic measures aimed purely at keeping you comfortable, such as warmth, hygiene, pain relief and managing distressing symptoms, are treated differently from medical treatment, and generally can’t be refused through a Living Will.

However, artificial nutrition and hydration sit in a different category. They can constitute medical treatment in their own right, and can potentially be refused through a properly drafted Advance Decision.

What makes a Living Will valid?

Doctors are required to assess whether a Living Will is valid whenever they’d otherwise be bound to follow it. In practice, that means considering whether your instructions still reflect your actual wishes at the point treatment is needed, and whether they apply to the specific circumstances that have arisen. If both are true, the Living Will is legally valid and must be respected.

An Advance Decision can stop being valid where, for example:

you withdrew it while you still had capacity
you later made an LPA giving an attorney authority over the same treatment decision
your later behaviour was clearly inconsistent with it, suggesting you’d changed your mind

When is a Living Will “applicable”?

Even a valid Advance Decision might not apply to the exact situation that arises. Healthcare professionals need to consider whether:

the treatment being proposed is actually the treatment you refused
the circumstances you specified have actually occurred
circumstances have changed materially since you made it
there are reasonable grounds to think you’d have decided differently had you known what was actually going to happen

The Mental Capacity Act Code of Practice specifically flags things like developments in medical treatment and changes in personal circumstances as potentially relevant here. This is another good reason to get help drafting a Living Will. It shouldn’t only make sense on the day you write it. It needs to be clear enough that a healthcare professional facing a real decision years later can work out, with confidence, whether it applies.

Who decides whether my Living Will applies?

In practice, the healthcare professionals proposing the treatment need to satisfy themselves, in this order, that you currently lack capacity for that particular treatment decision, that an Advance Decision exists, that it’s valid, and that it’s applicable to what’s actually happening. Current government guidance places exactly these questions at the centre of the decision.

Living Will versus Advance Statement

It’s worth knowing the difference between an Advance Decision to Refuse Treatment and an Advance Statement, since the two are easily confused.

Advance Decision to Refuse Treatment

Can create a legally binding refusal of specified treatment, provided the legal requirements are met.

Advance Statement

Records your wishes, preferences, beliefs and values about future care, without being legally binding. It might cover things like:

where you’d prefer to be cared for
religious or spiritual wishes
personal routines
food preferences
personal care
who you’d like consulted
other wishes about your care

An Advance Statement isn’t legally binding, but it should be taken into account whenever someone later makes a best interests decision on your behalf.

Living Will versus Health and Welfare LPA

A Living Will says: these are decisions I’m making now. A Health and Welfare LPA says: these are the people I trust to make decisions later.

A Living Will is inherently specific. It applies to particular treatment refusals in particular circumstances that you’ve defined in advance. A Health and Welfare LPA is more flexible, because your attorney can respond to medical situations that nobody could have predicted when the document was made. Read more about Health and Welfare LPAs.

Can I have both?

Yes, and there are often good reasons to. You might want firm, binding decisions now about particular treatments you feel strongly about, while trusting your attorneys to make other, unforeseen welfare decisions as they arise. The two documents can genuinely complement each other. The key point is that they need to be properly coordinated, since an ambiguity or contradiction between them can create exactly the confusion both documents were meant to avoid.

What if my Living Will and LPA conflict?

Assuming both documents are legally valid, a conflict between them is generally resolved in favour of whichever was made more recently. Broadly, if you later make a Health and Welfare LPA giving an attorney authority over the same treatment decision, that can affect the validity of an earlier Living Will covering the same ground. Conversely, if you make a Living Will after an existing LPA, and it validly refuses treatment the LPA also covers, your attorney can’t simply set that later refusal aside.

The precise scope and timing of both documents matters a great deal here. It’s a good idea to create both at the same time, or to get proper guidance to make sure they don’t end up working against each other. Speak to Wise Owl Wills if you already have one document and are considering the other.

What happens if I don’t have a Living Will?

If you lose capacity and there’s no valid, applicable Living Will in place, treatment decisions are ordinarily made under the best interests framework, taking account of whatever evidence exists about your wishes and consulting the people close to you. Where you have a Health and Welfare attorney with the right authority, they may be able to make the decision instead. Where there’s neither a Living Will nor an attorney with the relevant authority, family members don’t automatically gain the right to dictate your treatment simply because they’re next of kin.

The NHS is clear that, without an applicable Advance Decision, decisions about continuing or stopping treatment are made according to your best interests, with appropriate consultation. That process can be a genuinely good one, but it isn’t the same as you having made the decision yourself, and it might not land on the choice you’d actually have made. A Living Will lets you decide in advance, rather than leaving that decision to be reconstructed later by people doing their honest best to work out what you would have wanted. Get in touch with Wise Owl Wills if you’d rather make that decision yourself, while you still can.

How do I make a Living Will?

The process itself is straightforward:

decide which treatment you want to refuse
decide the precise circumstances in which that refusal should apply
discuss the implications and any clinical consequences with your GP, if you’d like to
have the Advance Decision drafted
sign it and have it properly witnessed
provide copies to the right people
review your decisions periodically, in case anything changes your mind

Unlike an LPA, a Living Will doesn’t need to be registered with the Office of the Public Guardian once it’s signed and witnessed. It is, however, sensible to make sure the people who need to know about it actually do, including your GP and any other treating doctors, your close family, and any attorneys you’ve appointed under a power of attorney.

Should I discuss it with my GP or doctor?

Generally, yes, particularly if you’re considering refusing complex or life-sustaining treatment. The NHS specifically recommends discussing any proposed treatment refusal with your doctor or healthcare team, so you properly understand the consequences of what you’re deciding.

It can also be genuinely useful in a different way. A doctor can help you understand that a phrase like “being kept alive artificially” isn’t one single thing. It can cover several quite different treatments, some of which you might actually be willing to accept.

How will a doctor know that I have a Living Will?

A carefully drafted Living Will sitting in a filing cabinet at home does very little good in an emergency. Worth giving copies to:

your GP
relevant hospital consultants
other healthcare teams involved in your care
any Health and Welfare attorneys you’ve appointed
your partner or spouse
close family
carers, where appropriate

The NHS specifically recommends making sure family, carers and healthcare professionals know the decision exists and where to find it, including keeping a copy in your medical notes.

Can I change my mind?

Yes. Provided you still have capacity, you can change or withdraw an Advance Decision at any time. Withdrawal doesn’t have to be in writing, though documenting the change clearly is obviously sensible, so there’s no doubt later about what you actually decided.

Does a Living Will expire?

There’s no fixed statutory expiry date, but that doesn’t mean you write it once and forget about it. Over time:

medical treatments change
diagnoses and their outlook change
personal circumstances change
your own beliefs may change
the language used to describe treatments can become outdated

Healthcare professionals may take into account how long ago your Living Will was made, and whether later developments, medical or personal, were ones you couldn’t have anticipated at the time.

How often should I review my Living Will?

Reviewing it periodically, and re-signing or reaffirming it if it still reflects your wishes, provides useful evidence that it remains current. There’s no fixed schedule that suits everyone, but revisiting it after a significant health change, or every few years as a matter of habit, is a sensible approach.

What happens if somebody disputes it?

Disagreements can arise over things like whether you had capacity when you made it, whether it was withdrawn, whether later behaviour invalidated it, what a particular phrase actually means, whether the proposed treatment is really the one you refused, whether the circumstances you specified have arisen, or whether a later LPA has taken over the relevant authority.

Where a dispute can’t be resolved, the Court of Protection can determine questions about whether the Living Will exists, is valid, or is applicable. While that’s being worked out, the law allows necessary life-sustaining treatment, or treatment aimed at preventing serious deterioration, to continue in the meantime.

How Wise Owl Wills can help

A generic template downloaded from the internet can look convincing without actually working when it matters. The value of a properly drafted Living Will lies in precision: the right treatments named, the right circumstances specified, and the right formalities observed, so a document written today still makes sense to a doctor facing a real decision years from now.

At Wise Owl Wills, we help make sure your document accurately captures your actual decisions, and works coherently alongside the rest of your future planning. We help you to:

understand what you actually want to achieve
distinguish binding treatment refusals from more general wishes about your care
identify the treatment involved, precisely
identify the circumstances in which the refusal should operate
make sure the extra formalities for refusing life-sustaining treatment are properly satisfied where relevant
consider how it sits alongside an existing or proposed Health and Welfare LPA
produce a clearly drafted document designed to minimise ambiguity
understand how to sign it properly
know what to do with copies, and how to make sure your healthcare providers actually know it exists

How much is a Living Will?

We charge £100 for a Living Will. That covers a guided appointment to work through your decisions properly, a document drafted to meet the legal formalities, and clear guidance on signing, witnessing and making sure the right people have a copy. Contact Wise Owl Wills to get started.

Frequently Asked Questions

Do I need a solicitor to make a Living Will?

No, there’s no legal requirement to use a solicitor. However, given how much weight is placed on precise wording, both for validity and for the document to be correctly applied years later, professional guidance significantly reduces the risk of a Living Will that doesn’t work the way you intended.

Do I need my doctor’s involvement to make a Living Will?

No, a doctor doesn’t need to be involved for a Living Will to be legally valid. That said, discussing your intended refusals with your GP, particularly for anything involving life-sustaining treatment, is genuinely worthwhile, since it helps you understand exactly what you’re deciding.

Does a Living Will have to be witnessed?

It depends on what you’re refusing. A Living Will refusing life-sustaining treatment must be witnessed by law. For a Living Will refusing other treatment, witnessing isn’t a strict legal requirement, but it’s still strongly recommended, since it provides clear evidence later that the document genuinely reflects your considered wishes.

Can I specify that I do not want to be “kept alive artificially”?

Not effectively, on its own. That phrase isn’t a recognised medical or legal term, and different people mean quite different things by it. A Living Will needs to name the actual treatments you’re refusing, such as artificial ventilation or artificial nutrition and hydration, and the circumstances in which that refusal applies, rather than relying on a general phrase that a doctor would have to interpret.

Can my family override my Living Will?

No. If your Living Will is valid and applicable, your family cannot override it, however strongly they may disagree with your decision. It’s still worth discussing your wishes with them in advance where you can, simply to avoid confusion or distress at a difficult time.

Can a doctor override my Living Will?

Not simply because they disagree with your decision. A doctor can only depart from a Living Will if they conclude, based on the evidence, that it isn’t valid or doesn’t apply to the situation in front of them. Disagreeing with your choice isn’t, on its own, a legal basis to ignore it.

What happens if doctors cannot find my Living Will?

If a Living Will can’t be located when a decision needs to be made, doctors will generally proceed as though none exists, making the decision under the best interests framework instead. This is exactly why making sure the right people, and your medical records, actually hold a copy matters as much as writing the document in the first place.

Can an Advance Decision apply if I am detained under the Mental Health Act?

Generally, an Advance Decision cannot be used to refuse treatment for a mental disorder while you’re detained and being treated compulsorily under the Mental Health Act, with one notable exception: a valid Advance Decision can still be used to refuse electroconvulsive therapy (ECT), even during detention. Advance Decisions relating to treatment for physical health conditions, unrelated to the reason for detention, are generally unaffected.

Next Steps

Deciding now means the choices made about your treatment, if you’re ever unable to speak for yourself, are actually yours, not a guess made by people doing their best without knowing what you’d have wanted.

If you’re ready to put a Living Will in place, or you’d like to talk it through first, contact Wise Owl Wills for a guided appointment by phone, or a free home visit if you’re in the Greater Manchester area.

Call us today on 0161 524 1033

Or book your free home consultation online