What is an advance directive?

An “advance directive” is a statement setting out what medical treatments you would not wish to receive at a future point in your life. Advance directives are sometimes referred to as “living wills” or “advance decisions”.

Why make an advance directive?

Sometimes a medical condition can prevent a person from making or communicating their views on medical treatment. Where this is the case the person is said to “lack capacity”. If you are worried that you may lack capacity in the future and would not wish to receive medical treatment at such time you can make and communicate your views while you are still able to do so by making an advance directive.

Can anyone make an advance directive?

For an advance directive to be valid the person who made it must have been 18 years old or over when they made the advance directive and must have had the capacity to make and communicate their views on medical treatment when the advance directive was made.

What sort of things can an advance directive contain?

An advance directive can set out the sort of medical treatment you would not like to receive, for example treatment which would keep you alive.

What sort of things can an advance directive not be used for?

Any request contained in an advanced directive that is against the law will not be valid. For example, a provision requesting assistance to commit suicide will not be valid because, as the law currently stands, it is illegal for someone to help another commit suicide.

Any provision contained in an advance directive specifying what sort of medical treatment you would like to receive will not be binding. Similarly, any provision appointing someone to make decisions on your behalf will not be binding (if you would like someone to make such decisions you should make a “lasting power of attorney” instead).

What are the formalities for making an advance directive?

An advance directive can be made verbally or in writing. If possible, however, it should be made in writing so as to ensure that there can be no doubt as to what your views are.

If made in writing, it is sensible to set out your full details in the advance directive and sign and date the document. You should also clearly state what treatment you would not wish to receive and the circumstances in which you would not wish to receive such treatment.

If you are unable to write and sign the document yourself you should get someone to write it for you and ask that person to sign it on your behalf in your presence.

If the advance directive contains a provision stating that you would not wish to receive life-saving treatment, then such provision must be signed and witnessed by someone who has mental capacity to confirm that you have signed it or asked someone to sign it in your presence.

When will an advance directive not be binding?

As explained above, any request contained in an advanced directive that is against the law will not be valid.

An advance directive will also not be binding if someone influenced or harassed a person into making the advance directive.

Any provisions contained in an advanced directive which are not clear will not be binding. It is important, therefore, that an advanced directive clearly sets out the treatments you would not wish to receive in the future and explain the circumstances in which you would not want to receive such treatment.

If you have said or done something that would contradict the advance directive since making it then it will no longer be binding. For example, if you have changed religion since making the advance directive and your new faith allows the type of treatment you have previously refused.

If circumstances have changed since you made the advance directive and it is believed that such circumstances would have affected your decision, for example a miracle drug has since been discovered, then the wishes set out in your advance directive may no longer be followed.

Can I be certain that the wishes I have set out in my advance directive will be followed?

If the advance directive is valid then your wishes will normally be followed. If, for example, you are given life-saving treatment and you have specified in your advance directive that you would not wish to receive such treatment then legal action could be taken against the doctor administrating such treatment.

There is an exception relating to treatment for a mental health condition as a doctor is allowed to treat a person for a mental health condition without obtaining their consent. If there is any doubt or a dispute as to the validity of an advance directive then treatment can be administrated if ordered by the Court.