What is a living will? A UK guide to advance decisions

A living will is a written decision to refuse a particular medical treatment in the future, in case you cannot make or communicate that decision yourself. In England and Wales the law calls it an advance decision to refuse treatment. It can only say no to treatment. It cannot ask for treatment, and it does not give anyone the power to speak for you. For that, you need a health and welfare lasting power of attorney (LPA).

What is a living will?

A living will records your decision, made now, that a named treatment should not be given or continued later on. It only comes into play if you have lost the mental capacity to decide about that treatment at the time.

To make one, you must be 18 or over and have the capacity to make the decision. You must say which treatment you are refusing, and you can describe the situations in which the refusal applies. The law allows you to use everyday words. You do not need medical language.

What else is a living will called?

You may see the same document called an advance decision, an advance decision to refuse treatment, or an ADRT. “Advance decision” is the term used in the Mental Capacity Act 2005. “ADRT” is common in hospitals and in NHS guidance. “Living will” is the everyday name. They all mean the same thing.

Is a living will the same as a will?

No. A will says who inherits your money, property and belongings after you die. A living will has nothing to do with inheritance. It deals only with medical treatment while you are still alive but unable to decide for yourself. If you are looking to make a will, you can make your will online with us.

Is a living will the same as an advance statement?

No. An advance statement records your general wishes, values and preferences about your care, such as where you would like to be looked after. The NHS explains that an advance statement is not legally binding, although anyone making decisions about your care must take it into account. A living will is different: if it is valid and applies, it must be followed.

Is a living will legally binding in England and Wales?

Yes, if it is valid and applies to the treatment in question. Under section 26 of the Mental Capacity Act 2005, a valid and applicable advance decision has the same effect as if you had refused the treatment yourself, with capacity, at the time. Your doctors must follow it.

If there is real doubt about whether a living will exists, is valid or applies, the Court of Protection can decide. While that question is with the court, doctors can still give life-sustaining treatment.

What are the rules for refusing life-sustaining treatment?

Life-sustaining treatment is treatment that keeps you alive, such as help with breathing or resuscitation if your heart stops. Refusing it in a living will needs extra formalities. Under section 25 of the Act, the refusal must be in writing, signed by you (or by someone else in your presence and at your direction), and signed by a witness in your presence. It must also include a statement that it applies “even if life is at risk”. Without these, a refusal of life-sustaining treatment does not apply.

What can a living will not do?

A living will can only refuse treatment. The Mental Capacity Act Code of Practice is clear that nobody can use one to demand a particular treatment.

It also cannot refuse the basic care needed to keep you comfortable. The Code of Practice gives examples such as warmth, shelter, keeping you clean, and the offer of food and water by mouth. A living will can, however, refuse artificial nutrition and hydration, such as feeding through a tube.

And it cannot appoint anyone to make decisions for you. Your family may know exactly what you would want, but a living will gives them no legal authority to speak up for you.

When might a living will not be followed?

A living will is not valid if you withdrew it while you still had capacity, or if you have done something clearly inconsistent with it since. It is also not valid if you later made a health and welfare LPA that gives your attorneys authority over the same treatment.

Even a valid living will does not apply if you still have capacity to make the decision yourself, if the treatment proposed is not the one you named, or if the circumstances you described are not present. It also does not apply if there are reasonable grounds to believe that something has changed which you did not foresee, and which would have affected your decision.

That last point is why age matters. The Code of Practice says older decisions are not automatically invalid, but they may raise doubts. It recommends reviewing your living will regularly, for example when a new treatment becomes available or your health changes.

What are the benefits of a living will?

It is your own decision. You set out the refusal in your own words, and nobody else weighs it up for you.

It is legally binding. If it is valid and applies, your doctors must follow it.

It does not need anyone to act for you. It can suit people who have no one they would want to appoint, or who do not want to place that responsibility on family or friends.

There is no registration. Unlike an LPA, there is no fee to pay and nothing to send to the Office of the Public Guardian.

What are the drawbacks of a living will?

It can only say no. It cannot ask for a treatment you would want.

It is narrow. It covers named treatments only. Where you live, your day-to-day care and who looks after you are all outside it.

It has to match what happens. A different treatment, missing circumstances or a change you did not foresee can each mean it does not apply.

It can go out of date. Medicine moves on, and an old decision may be questioned.

Nobody speaks for you. It gives your family no legal voice in decisions about your care.

It has to be found. The NHS suggests keeping a copy in your medical records and telling your family and doctors where it is. A document nobody knows about cannot help in an emergency.

Living will or health and welfare LPA: which is better?

For most people, a health and welfare LPA does more. Instead of trying to predict the future, you choose people you trust to make decisions for you if you cannot. Your attorneys can talk to your doctors, weigh up the situation in front of them and act on what they know you want.

A health and welfare LPA can cover your medical treatment, your care, where you live and your daily routine. Your attorneys can agree to treatment as well as refuse it. They can also make decisions about life-sustaining treatment, but only if your LPA expressly gives them that power. Under section 11 of the Mental Capacity Act 2005, that choice is yours to make when you create the LPA.

You can also write your firm wishes into the LPA as preferences and instructions, so your attorneys have clear guidance. Capacity Vault explains the preferences and instructions you can include and why they matter, including those on medical treatment and end of life care.

A health and welfare LPA does place real responsibility on the people you choose. If you have no one you would want to appoint, or you do not want to put family in that position, a living will may suit you better.

Solicitor Kate Scott compares the two in detail in Living wills: advance decisions v health and welfare LPAs.

Can I have a living will and an LPA?

Yes, but the order you make them in matters. If you make a health and welfare LPA after your living will, and the LPA gives your attorneys authority over the same treatment, the living will is no longer valid. If you make a living will after your LPA, your attorneys must respect it, because section 11 of the Act makes their authority subject to your advance decisions.

If you have both, review them together so they do not contradict each other. Our guide to when attorneys can act explains when a health and welfare LPA can be used.

How do I make a health and welfare LPA?

You can make an LPA yourself on GOV.UK, online with a solicitor checking it, or with a solicitor. Our guide on how to make an LPA sets out the three options, with the costs and the steps.

If you want help with the part that matters most, Capacity Vault’s online LPA lets you choose ready-written preferences and instructions on your care and treatment, and a solicitor checks everything before you sign. Most people make both types of LPA: see do I need an LPA?

Make a Will Online readers save on Capacity Vault LPAs: just £80 per LPA with code MAWOLPA33, plus the Office of the Public Guardian’s £92 registration fee.

Start your health and welfare LPA with Capacity Vault

Frequently asked questions about living wills

Is a living will legally binding in the UK?

In England and Wales, yes, if it is a valid advance decision that applies to the treatment in question. A refusal of life-sustaining treatment must also be in writing, signed, witnessed and say that it applies even if your life is at risk. This guide covers England and Wales only.

Do I need a solicitor to make a living will?

No, the law does not require one. The NHS suggests talking to a doctor or nurse about the treatments you might be offered before you decide. Taking legal advice is sensible if you also have, or plan to make, a health and welfare LPA, so the two do not conflict.

Can a living will refuse food and water?

It can refuse artificial nutrition and hydration, such as tube feeding. It cannot refuse basic care that keeps you comfortable, which includes the offer of food and water by mouth.

Does an LPA override a living will?

It can. A health and welfare LPA made after your living will, giving your attorneys authority over the same treatment, makes the living will invalid. An LPA made before the living will does not cancel it.

How do I cancel a living will?

You can withdraw or change it at any time while you have capacity. A withdrawal does not have to be in writing, but tell your doctor and anyone holding a copy, so there is no confusion.

Should I make a living will or an LPA?

For most people, a health and welfare LPA is the stronger choice, because your attorneys can respond to what actually happens and cover far more than treatment. A living will can still suit someone with a clear, specific refusal in mind, or with no one they would want to appoint.

This guide covers the law in England and Wales. It is general information, not legal or medical advice. If you are thinking about refusing treatment in advance, please talk to your doctor.