Living will: what it is and how to make one

Imagine losing the ability to speak for yourself; no one would know whether you want life support, resuscitation, or a natural death. A living will (advance decision) lets you refuse specific medical treatments before capacity loss strikes, ensuring doctors respect your wishes even when you cannot voice them. Under the Mental Capacity Act 2005, it’s legally binding in England, Wales, and Northern Ireland. This guide explains what makes one valid, how to create it, and when probate solicitor guidance protects your intentions from challenge.

Key Takeaway: How to make a living will before you lose mental capacity:

• A living will is a document that lets you refuse specific medical treatments in advance so doctors can follow your wishes if you lose mental capacity.
• Your living will only applies when you’ve lost capacity, meet strict legal requirements (witnessing for life-sustaining refusals), and your situation matches your written instructions.
• Make one yourself for free using validated templates or pay a solicitor £150–£400 for professional drafting if you have complex medical history or family conflict concerns.

Speak to a solicitor specialising in wills and advance care planning if your medical history is complex, family relationships are strained, you have early cognitive concerns, or you want certainty your living will withstands legal scrutiny and family challenge.

What is a living will?

A living will, formally known as advance decision to refuse treatment, is a written statement refusing specific medical treatments in advance, before you lose mental capacity. It activates only when you lack capacity to decide for yourself, not before, and not while conscious.

Living wills are legally binding in England, Wales, and Northern Ireland if they meet strict validity requirements. In Scotland, they’re not legally binding but doctors typically respect them as evidence of your wishes.

When does a living will become legally binding?

A living will becomes legally binding when two conditions are both met: you lose mental capacity for the specific decision in question, and doctors assess your document as valid and applicable.

Validity requirements (Section 25, Mental Capacity Act 2005):

• In writing and signed.
• Made freely without pressure.
• Made with full mental capacity.
• Explains exact circumstances for refusal.
• Clearly specifies which treatments you refuse.
• Shows no evidence you’ve changed your mind.
• Witnessed (if refusing life-sustaining treatment).

Applicability requirements (Section 26):

Doctors assess applicability by asking: Have you lost capacity for this decision? Does your document apply to treatment now offered? Does it cover your current situation? Is there reason to believe you’ve contradicted it since making it?

Real-world example:

If you refuse CPR for dementia but later tell your doctor “I’ve changed my mind,” that contradictory statement may affect how doctors interpret your original advance decision.

How does a living will differ from a lasting power of attorney

These documents serve completely different purposes and are commonly confused.

• Living will = You refuse specific treatments in advance. Once made, it only applies if you lose capacity and your situation matches your written instructions. It’s fixed, specific, and passive.
• Lasting power of attorney (LPA) for health and welfare = You appoint a trusted person to make any healthcare decision for you. LPAs respond to situations you never anticipated, using judgment in your best interests. It’s flexible and active.

Key difference:

A living will controls only the refusals you’ve written. An LPA attorney can make decisions you never thought of. Many people have both; your attorney can use your living will to understand your values, but their powers are broader.

What treatments you can and cannot refuse in a living will

Most living wills address specific medical scenarios where you’re likely to lose capacity: advanced dementia, terminal illness, severe brain injury, or diseases of the central nervous system (motor neurone disease, Parkinson’s, multiple sclerosis).

You can refuse all life-sustaining treatment in these circumstances, or refuse only certain treatments (for example, CPR but not antibiotics). Your document should be specific about both the condition and the treatment you’re refusing; vague refusals may not be enforceable.

Common life-sustaining treatments people refuse:

• CPR (cardiopulmonary resuscitation): Chest compressions, electric shocks, medications, and ventilation if your heart stops.
• Mechanical ventilation: A tube connecting you to a breathing machine. People often refuse this in dementia or terminal illness, fearing prolonged artificial existence.
• Clinically assisted nutrition and hydration: Feeding tubes or IV nutrition. Some refuse these in advanced dementia, accepting natural decline.
• Antibiotics for life-threatening infection: Accepting natural death from infection rather than aggressive treatment in serious illness.

Critical legal wording: If you refuse life-sustaining treatment, your living will must include this required legal wording: “I refuse this treatment even if my life is at risk as a result.” Without it, the refusal may not be legally valid.

What you cannot refuse: Basic comfort care, pain relief, emotional support, or any treatment you refuse while conscious. A living will only covers situations where you lack capacity and cannot decide in the moment.

How to make a living will: step-by-step

There’s no official government form. Templates from Compassion in Dying and the NHS are widely used and designed to meet Mental Capacity Act requirements.

1. Confirm you have mental capacity: You must understand the document’s purpose, treatments you’re refusing, circumstances for refusal, and consequences. If experiencing memory loss or early cognitive decline, consider professional involvement to document your capacity at signing.
2. Decide which treatments to refuse: Be specific. “I refuse CPR if diagnosed with advanced dementia causing inability to recognise family” is clearer than “I refuse CPR.” Clarity helps doctors assess applicability.
3. Complete a validated template form: Use Compassion in Dying’s template or Alzheimer’s Society’s template. These meet Mental Capacity Act requirements and are tested in legal practice.
4. Sign and witness: Sign and date your document. A witness must watch you sign, then sign themselves. Choose an independent adult witness. Avoid anyone who may later be seen as having a conflict of interest, such as an attorney or someone directly involved in your care.
5. Distribute copies: Share photocopies with your GP surgery, local hospital, ambulance service, and family. Follow up with your GP in a few weeks to confirm it’s been added to your medical record. Consider the Lions Club Message in a Bottle scheme to keep a copy in your fridge.
6. Review every two years: Revisit biennially. If nothing has changed, sign and date the review section. For major changes, create a new document with fresh signatures and witnessing.

Common mistakes that invalidate your living will

Many otherwise well-intentioned living wills may not be followed because of preventable errors that doctors and courts may not enforce.

• Forgetting to witness life-sustaining refusals: Witnessing is required for CPR or ventilation refusals. Unwitnessed refusals may not be legally valid.
• Vague language: “I refuse invasive treatment” is unclear. “I refuse CPR if I have advanced dementia lasting more than two years” is enforceable.
• Missing the required legal wording: Must include: “I refuse this treatment even if my life is at risk as a result.” Without it, refusal may not be valid.
• Contradictory behaviour: Telling your doctor “I’ve changed my mind” after signing may invalidate the document. Consistency is legally important.
• Outdated documents: Living wills signed years ago raise applicability questions. Review and re-sign every two years to confirm your wishes haven’t changed.
• Signing while lacking capacity: If you had early dementia or didn’t fully understand the document, it may be subject to challenge. Professional involvement provides protection.

FAQs

Can I change my mind after signing a living will? Yes. You can revoke a living will any way; tear it up, write “revoked” on it, tell your GP, or create a new one. If you later contradict it through behaviour or statements, doctors may question its applicability. The most recent, consistent expression of your wishes applies.

Can family override my living will? A valid and applicable advance decision has the same force as if you’d refused treatment while conscious. Family members cannot legally override it. However, if your living will is invalid (unwitnessed life-sustaining refusal, vague language, evidence of pressure), doctors may consult family about best interests.

What if I lose capacity before making a living will? You cannot legally make a living will once you lack capacity. Family members would need to apply to the Court of Protection for a guardianship order; a process involving significant legal costs and delays. This is why making a living will while capable is important.

A living will ensures your medical wishes are respected when you cannot voice them. Starting now, while healthy and capable, protects your autonomy and gives your family certainty. Whether you choose a DIY template or professional drafting, the act of planning ahead is what matters most.

This is general information based on the Mental Capacity Act 2005 and NHS guidance; not legal advice. Consult a solicitor for complex situations.

Don’t leave your medical treatment to chance

Qredible’s network of solicitors specialising in wills and advance care planning can draft a legally robust living will tailored to your circumstances, helping ensure your wishes are legally binding and family disputes are prevented.

NEXT STEPS:

• Download a validated template from Compassion in Dying or the NHS and review what treatments you want to refuse.
• Discuss your wishes with your GP to understand your medical circumstances, refusal rationale, and ensure your document reflects realistic scenarios relevant to your health.
• Sign and have your document witnessed (required for life-sustaining refusals) by someone who can testify you signed willingly and understood what you were doing.
• Distribute copies to your GP, local hospital, ambulance service, and close family so doctors and emergency staff can locate it when needed.
• Consult a solicitor if you have complex medical history, family conflict, capacity concerns, or want certainty your living will withstands legal scrutiny. Qredible can connect you with a specialist.