Living Wills/Advanced StatementsAdvance directive giving instructions for your health care when no longer able to express informed consent

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The Mental Capacity Act 2005

The Mental Capacity Act 2005 provides a legal framework to help empower people to make their own decisions and to make clear what actions carers and family can take. It puts the law on advance decisions ( living wills) on a clear statutory basis for the first time. The rules relate particularly to advance decisions to refuse treatment, including refusal of life-sustaining treatment. For full details of the statutory bases please go to Chapter 9 of the Mental Capacity Act 2005 Sections 24, 25 and 26.

There is a Code of Practice to the Mental Capacity Act, which gives guidance on how it should work in everyday situations. Among other things, it explains how to assess whether someone lacks capacity to make a particular decision, and what it means to act in someone's best interests. Anyone dealing with an advance decision, especially medical staff providing care to someone who has made an advance decision, should have regard to the Code of Practice.

If you choose to draft your own advance decision, (make a Living Will) it is important that you include the below mentioned minimum information:

  • Your full name
  • Your address
  • Your date of birth
  • Any distinguishing features
  • The name, address and telephone number of your GP
  • Whether you sought advice from a healthcare professional
  • The date
  • Your signature
  • The dated signature of at least two witnesses over the age of 18. It is recommended that your witness should not be a partner, spouse, relative, anyone who stands to benefit under your will or your attorney under a Lasting Power of Attorney
  • A clear statement of your wishes and values
  • Your address
  • The name, address and phone number of whoever you have nominated to be consulted about treatment decisions i.e.your health and welfare attorney under a lasting power of attorney for health and welfare
  • Where relevant, the date that you reviewed the advanced statement. It is sensible to review and if necessary revise your advance statement regularly possibly every six months. Your personal and health situation will constantly be changing. If you want to make changes, you can make a new advanced statement or amend your existing document. However, you must make sure that any revisions or amendments are signed dated and witnessed by an independent person.
  • if the advance decision relates to life-sustaining treatment, you must include a statement clarifying that the decision applies to that treatment even if it might put your life at risk.

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