Wills, advance decisions and advance care plans

The three documents

• Will: directs the distribution of property and assets after death;
• Advance Decision to Refuse Treatment (ADRT, sometimes called Living Will): refuses specific medical treatments in advance, in case capacity is lost;
• Advance Care Plan: a broader, less formal record of preferences for future care, treatment and end of life.

Together with a Lasting Power of Attorney, these documents give the person the most influence over their future.

Capacity to make these documents

Capacity is decision-specific. To make a will, the person must understand:

• The nature and effect of making a will;
• The extent of their property;
• Who might reasonably expect to benefit;
• Be free from delusion that affects the decision.

A diagnosis of mild dementia does not prevent will-making. A solicitor or doctor can provide a capacity opinion if there is any concern. The Banks v Goodfellow test is the historical legal standard.

Wills

If you do not have an up-to-date will, your estate is distributed by intestacy law, which may not reflect your wishes. Common situations that need a new will:

• No existing will;
• Existing will is more than 5 to 10 years old;
• Significant change in family or assets since the existing will;
• Specific wishes (a particular bequest, a charitable gift, provision for a child with disability).

A solicitor specialising in older people's law (Solicitors for the Elderly accredited) is recommended for wills involving someone with a dementia diagnosis, both for the drafting and the contemporaneous capacity assessment.

Advance Decision to Refuse Treatment

An ADRT is a legally binding document under the Mental Capacity Act 2005. It allows you to refuse specific medical treatments in advance, in case you lose capacity to refuse them at the time. Common subjects include:

• Resuscitation;
• Mechanical ventilation;
• Antibiotics for severe infection in advanced illness;
• Tube feeding;
• Specific cancer treatments.

For an ADRT to refuse life-sustaining treatment to be valid, it must be:

• In writing;
• Signed by you and a witness;
• Include a statement that the decision applies "even if my life is at risk".

An ADRT cannot demand treatment (only refuse it), cannot require something illegal (such as assisted dying), and cannot pre-decide care that should be made in best-interests context. A copy should be with your GP record, your hospital record, your family, and ideally your attorneys.

Advance Care Plan

Less formal than an ADRT, an Advance Care Plan records preferences for future care:

• Where you would prefer to be cared for;
• Your priorities (comfort, longevity, independence);
• Religious and cultural preferences;
• People who should be involved in decisions;
• Important relationships and information about your life.

An Advance Care Plan is not legally binding but is influential in shaping decisions made in your best interests if capacity is lost. The ReSPECT process (Recommended Summary Plan for Emergency Care and Treatment) is the standard UK framework used by many NHS regions for recording emergency care preferences.

Practical priorities

1. Update your will, if needed, with a Solicitors for the Elderly accredited solicitor;
2. Discuss an Advance Decision to Refuse Treatment with your GP and family;
3. Complete a ReSPECT form (or equivalent) with your GP;
4. Put a Lasting Power of Attorney in place for both health and finance;
5. Tell family where these documents are kept.

Where to get help

• Solicitors for the Elderly (national accreditation): https://www.sfe.legal;
• Compassion in Dying provides free ADRT forms and guidance;
• Marie Curie supports end-of-life planning;
• The Alzheimer's Society has comprehensive guides on each document;
• Citizens Advice for free general advice.