A Living Will for England and Wales is a legally binding document, formally known as an Advance Decision to Refuse Treatment, made under sections 24 to 26 of the Mental Capacity Act 2005 (MCA 2005). It enables any person aged 18 or over with the mental capacity to do so to record in advance their decision to refuse specific medical treatments in specific circumstances, should they later lose the capacity to make or communicate those decisions themselves.

The term "Living Will" is commonly used to describe this type of document, although the statutory term used in the Mental Capacity Act 2005 is "advance decision." Both terms refer to the same legal instrument. The concept is rooted in the fundamental common law principle of bodily autonomy — the right of every competent adult to determine what happens to their own body. This principle was placed on a statutory footing by the MCA 2005, building on earlier common law recognition in cases such as Re T (Adult: Refusal of Treatment) [1992] and Airedale NHS Trust v Bland [1993].

A Living Will operates exclusively as a refusal of treatment. It cannot be used to request or demand specific treatments — healthcare professionals are never legally obliged to provide treatment that is not clinically indicated. However, a valid and applicable advance decision has the same legal force as a contemporaneous refusal by a competent patient: the specified treatment must not be carried out or continued (section 26(1) of the MCA 2005). Any healthcare professional who provides treatment contrary to a valid advance decision could face a claim for battery under common law.

There are two categories of advance decision recognised by the Act. A simple advance decision relates to treatments that are not life-sustaining. While the MCA 2005 does not strictly require it to be in writing, written documentation is strongly recommended as it provides clear evidence of the person’s wishes and reduces the risk of dispute. A formal advance decision that includes refusal of life-sustaining treatment must comply with the additional requirements of section 25(5): it must be in writing, signed by the maker (or by another person at their direction), witnessed, and must contain an explicit statement that the decision applies even if the person’s life is at risk.

The Human Rights Act 1998, incorporating the European Convention on Human Rights into domestic law, reinforces the right to make advance decisions. Article 8 of the Convention protects the right to respect for private and family life, which the courts have interpreted as encompassing the right to make autonomous decisions about medical treatment, including the right to refuse treatment in advance.

A Living Will is needed whenever you wish to ensure that your wishes regarding medical treatment are recorded and legally enforceable in case you later lose the mental capacity to communicate them. Without a Living Will or a Lasting Power of Attorney for Health and Welfare, decisions about your treatment will be made by healthcare professionals applying the best interests framework set out in section 4 of the Mental Capacity Act 2005 — which may not align with your personal values, religious beliefs, or treatment preferences.

Common situations in which people in England and Wales choose to make a Living Will include: a diagnosis of a progressive neurological condition such as dementia, Alzheimer’s disease, motor neurone disease, Parkinson’s disease, or multiple sclerosis, where the person anticipates gradually losing the ability to communicate their wishes; following a serious medical diagnosis where the individual wishes to plan for potential deterioration; before undergoing high-risk surgery where there is a possibility of prolonged unconsciousness or cognitive impairment; where the person holds strong personal, religious, or philosophical beliefs about specific treatments (for example, a Jehovah’s Witness who wishes to refuse blood transfusions in all circumstances); and as a general precautionary measure by any adult who wishes to plan ahead for the unexpected, regardless of their current state of health.

It is critically important to create a Living Will while you still have the mental capacity to do so. Under section 24(1) of the Mental Capacity Act 2005, an advance decision can only be made by a person who has capacity at the time. Once capacity is lost, the window of opportunity has closed and the only route to securing decision-making authority for a trusted person is through an application to the Court of Protection under section 16 of the Act — a process that is costly, slow, and subject to ongoing judicial supervision.

A Living Will should also be reviewed regularly and updated whenever your circumstances change significantly: for example, after a new diagnosis, a change in treatment options, a change in personal relationships, or a change in your values or beliefs about medical care. The MCA Code of Practice (chapter 9) recommends reviewing your advance decision at least every few years.

A well-drafted Living Will for England and Wales requires several essential elements to ensure it is valid, applicable, and enforceable by healthcare professionals.

Personal identification details must include your full legal name, date of birth, and current residential address. Including your NHS number is strongly recommended as it enables healthcare professionals to match the document to your medical records quickly, particularly in emergency situations where time is critical.

Specification of the circumstances in which the Living Will applies is fundamental to its effectiveness. Under section 25(4) of the Mental Capacity Act 2005, an advance decision is not applicable if the circumstances are different from those specified. Clear and detailed descriptions of the medical situations — such as terminal illness, persistent vegetative state, advanced dementia, or severe brain injury — reduce the risk of the document being found inapplicable.

Specification of treatments you refuse is the core operative content. Section 24(1) requires the advance decision to relate to specified treatment. Vague statements are unlikely to be effective. Each treatment should be listed by name using recognised medical terminology: cardiopulmonary resuscitation (CPR), mechanical ventilation, artificial nutrition and hydration (nasogastric or PEG feeding), intravenous antibiotics for life-threatening infections, blood transfusions, dialysis, or any other specific intervention you wish to refuse.

The life-sustaining treatment declaration is mandatory if your Living Will includes refusal of any treatment that could be considered life-sustaining. Section 25(5) requires the document to be in writing, signed, witnessed, and to contain the express statement that the decision applies even if life is at risk. Without this statement and the witness requirement, the refusal of life-sustaining treatment is not legally enforceable.

Witness details are essential for any Living Will that refuses life-sustaining treatment. The witness must be present when you sign (or acknowledge your signature) and must sign the document themselves. While the Act does not impose specific restrictions on who may witness, best practice is to choose an independent witness who is not a family member, your attorney under any LPA, or anyone who might benefit from your death.

An emergency contact section, while not a statutory requirement, is strongly recommended by the NHS and the MCA Code of Practice. This ensures healthcare professionals can quickly reach someone who is aware of your Living Will and can provide additional context about your wishes.

A declaration confirming your capacity, understanding, and voluntariness provides important evidentiary support. Recording that you made the Living Will freely, without coercion, and with full understanding of the consequences strengthens the document against any later challenge to its validity.