An advance healthcare directive (AHD) lets you record your wishes about medical treatment for a time when you cannot make the relevant decision yourself. Often called a living will, it can help you make your choices clear to the people caring for you.
Claire Tuohy at HOMS Assist advises on making and reviewing advance healthcare directives. She can help you understand the legal effect of your wording, consider a healthcare representative’s powers and identify the requirements your document needs to meet.
Discuss your advance healthcare directive
Ask for Claire Tuohy and tell us whether you’re making a new directive or would like advice on an existing one. If you already have a document, have it available for the first discussion.
Advice from Claire Tuohy
Claire is a Partner in HOMS Assist’s private client practice and advises clients on advance healthcare directives. She holds a diploma in the administration of trusts and estates and is a member of the Society of Trusts and Estate Practitioners, known as STEP. She also advises on enduring powers of attorney, helping you consider how the arrangements work together.
How we can help
You may be considering a directive for the first time, reviewing one after a diagnosis or checking whether an older document still reflects your wishes. Our legal advice can help you work through:
- The treatment you wish to refuse or request, and the circumstances your wording should cover.
- The difference between a binding treatment refusal and a treatment request.
- Whether to appoint a designated healthcare representative and which powers to give them.
- Unclear or outdated wording in an existing directive.
- Signing requirements and the relationship between your directive and an enduring power of attorney.
You do not have to use a solicitor to make a directive. Legal advice can help you understand the requirements and express your decisions carefully. Your GP or specialist can explain the medical choices and their consequences.
Understanding an advance healthcare directive
An advance healthcare directive is a written arrangement made by an adult with capacity. It records treatment decisions for a future time when the person lacks capacity to decide about that treatment. While you have capacity for the decision, you continue to make it yourself.
Capacity relates to a particular decision
Capacity concerns the decision you need to make at the time you need to make it. It involves understanding the relevant information, retaining it long enough to choose, using or weighing it and communicating your decision. Information and communication should be supported in a way that works for you. Difficulty with one decision does not automatically mean you cannot make another.
Treatment refusals and requests
A treatment refusal is legally binding when the directive is valid and applies to the treatment and circumstances that arise. The document needs to identify clearly both the treatment being refused and when that refusal should apply.
A refusal of life-sustaining treatment must expressly state that it applies even if your life is at risk. Treatment requests are different: they are not legally binding, but must be considered when relevant to your medical condition.
A directive cannot refuse basic care, such as warmth, shelter, oral food and drink, or hygiene. Artificial nutrition and hydration are treated differently. Special rules can also affect treatment under mental health legislation. If these issues concern you, discuss the medical position with your treating professional and the legal position with Claire.
Choosing a healthcare representative
You can appoint an eligible person you trust as your designated healthcare representative. This is optional. Their role is to help ensure your directive is followed. You can also give them powers to interpret your wishes or consent to or refuse treatment within the terms of your directive.
Discuss the role with them before making the appointment. They must agree to act and sign the document. Claire can explain eligibility, responsibilities and how to record the powers you want to give them.
How the advice works
Start by telling Claire what you want advice on and sharing any existing directive or relevant planning documents. She’ll discuss the legal questions, identify any medical information you need and agree the preparation or review work and fees with you.
- You decide your wishes and discuss treatment choices with your GP or specialist.
- Your GP or specialist explains treatments, alternatives and the consequences of your choices.
- Claire provides legal advice and carries out the preparation or review work agreed with you, including explaining the signing requirements.
- Your representative, if appointed, agrees to the role and understands the powers granted.
An AHD must be in writing and signed with two adult witnesses, at least one of whom is not your immediate family. If you appoint a representative, they must sign as part of the required signing arrangements too. We’ll agree any practical help with signing or copies as part of the work.
Advance healthcare directives and enduring powers of attorney
An advance healthcare directive deals with medical treatment choices. An enduring power of attorney, or EPA, can cover property, finances and certain personal welfare decisions, including some healthcare-related matters. An EPA does not authorise an attorney to consent to or refuse medical treatment.
You can make either arrangement without the other. Considering both can help you plan for different decisions. Claire advises on both services.
Read about enduring powers of attorney
Common questions
Can I help a parent or family member arrange a directive
Yes. You can help them seek advice, but the decisions must be their own, made voluntarily while they have capacity to make the directive. A relative cannot create one for them after that capacity is lost. If you’re unsure, seek advice about decision-making support and the available arrangements.
Can my next of kin make treatment decisions for me
Being your spouse, child or next of kin does not automatically give someone legal authority to consent to or refuse treatment for you. They may help explain your wishes. A designated healthcare representative’s authority depends on the powers given in your directive; other legal arrangements may also apply.
Can you review a living will I already have
Yes. Bring a copy and explain what you want to check or change. Claire can review its wording, signing requirements and any representative’s powers against your current wishes. Further work will depend on that review and what you agree with her.
Can I change or cancel my directive
Yes, while you have capacity to do so. Changes must be made in writing and meet the relevant signing and witnessing requirements, including your representative’s signature if one is appointed. Cancellation must be in writing. Make sure anyone holding a copy knows about a change or cancellation.
Does it need to be registered
An advance healthcare directive does not currently need to be registered with the Decision Support Service. Keep it accessible and give copies to your GP, relevant healthcare providers and representative, if appointed. Review it when your wishes or medical circumstances change.
How much does legal advice cost
The work involved differs between preparing a new directive and reviewing an existing one. We’ll explain the proposed legal work and fees before you decide to proceed. You can also make a directive yourself without paying for legal advice; the Decision Support Service provides guidance and a form.
Talk to Claire about your wishes
Talk to Claire about making or reviewing your directive. Have any existing document available and note your questions. You do not need to send detailed medical information with your initial enquiry.
Discuss your advance healthcare directive
