Both are written statements outlining which medical treatments and interventions an individual is willing to accept (and refuse) towards the end of their life when they are unable to make those decisions for themselves. The document is useful to share with next of kin, the wider family, and medical professionals.

Why are both terms used?

‘Living Will’ or ‘Advance Decision’ are the terms generally used in England and Wales but ‘Advance Directive’ gained wider recognition in Scotland in 2000 when the Adults with Incapacity (Scotland) Act 2000 was passed. 

What is covered in an Advance Directive or Living Will?

An individual should include their wishes and feelings about certain treatments and interventions and in what circumstances they want these wishes to apply.

For example, someone may wish to receive CPR but may want to refuse artificial ventilation. As well as any details about the treatment they may or may not want to accept, there is also the difficult matter of when to turn off life support in the instance of a poor quality of life and a low chance of survival or recovery.

There is no right or wrong when writing an Advance Directive, but it should be extremely clear to ensure that the individual’s wishes are crystal clear with no uncertainty for those trying to interpret it.

When does an Advance Directive apply?

The decision about when an Advance Directive applies is as personal as what is included in it. It may be that the treatment decision only applies to a particular set of circumstances (such as after a serious accident), after a definitive set of health events (such as being in a coma for a specific period of time) or for a particular illness or disease.

Some people will also be guided by their religious or other beliefs on matters such as whether to accept a blood transfusion or antibiotics. 

Is there anything else to include in an Advance Directive?

An Advance Directive can also set out who an individual would like to carry out their wishes and in what setting. 

This might be because someone has had a lifelong relationship with a consultant or family doctor in whom they place a considerable amount of trust. It may also be that the individual has preferences about whether they are happy for their life to come to a close in a hospital, hospice or at home. 

It’s also possible to include choices about organ donation and whether to donate all or some of your tissues or body to research. In this case, it’s important to complete the relevant documentation and have your wishes recorded on the NHS Organ Donor register.

Is there a minimum age requirement for writing an Advance Directive?

Yes, an individual must be at least 16 years old and be conscious and lucid. It doesn’t matter if the individual is already ill as long as they are sound of mind. Many people only draft an Advance Directive when they are diagnosed with a serious health condition and are concerned about what the future may hold in terms of treatment.

Who needs to know about an Advance Directive?

The most important person to tell is the next of kin - the person who will be at your side and at your bedside should you become ill. It can be helpful to tell other close family members while the individual still has their mental capacity, to ensure everyone understands the details therein. 

It’s also helpful to send a copy to your GP and to your family solicitor if you have one.

How can a solicitor help with an Advance Directive?

The main reason for making an Advance Directive is to ensure the individual’s wishes regarding their treatment are carried out. However, having an Advance Directive in place also gives great relief to loved ones, as it will remove some of the decision-making required at what can be an extremely difficult time. It can also reduce the likelihood of family conflict when for example, multiple siblings have differing views on healthcare choices for a parent.

With this in mind, the document must give complete clarity to everyone involved. That’s why, many people choose to involve a solicitor to ensure any grey areas or potentially conflicting instructions are ironed out.

A solicitor can also store a copy of an Advance Directive so that it does not get lost or changed.

Is an Advance Directive legally binding?

An Advance Directive is not legally binding in Scotland but in the event of a dispute, a court will use an Advance Directive to help make decisions in line with those of the individual who commissioned its creation. Therefore, should a court need to make any ruling, it’s crucially important that the document gives absolute clarity to those reading it.

Thinking about end-of-life care is uncomfortable for many of us and discussing these preferences with family, even more so. However, creating an Advance Directive not only gives you peace of mind that your wishes will be upheld, it also provides a framework with which to talk through your choices with those closest to you.