Victoria Mahon
- Partner
- Private Client
Planning ahead: advance decisions and Lasting Powers of Attorney
An advance decision (also known as a Living Will or Advance Directive) is a legally recognised way for an adult with mental capacity to set out in advance their wish to refuse particular medical treatments under specific circumstances should they later lose capacity to make those decisions.
Recent coverage of the Terminally Ill Adults (End of Life) Bill has reignited conversations about planning for the possibility of future incapacity, and the relationship between advance decisions and Health and Welfare Lasting Powers of Attorney (LPAs) is a frequent query.
Advance decisions
These are commonly made by people with serious or progressive illnesses, and/or those who have strong personal, religious or ethical views about particular forms of treatment. Provided that they are properly made and applicable to the circumstances, advance decisions must be followed by healthcare professionals, even if they believe that refusing the treatment is not in the person’s best interests. This can provide reassurance that specific wishes will be honoured and may help to alleviate uncertainty or distress for loved ones. While an advance decision can be used to refuse particular treatments, it cannot be used to demand treatment, nor can it authorise the refusal of basic care, such as food or drink, or request anything unlawful, including assisted dying.
Health and Welfare LPA
In contrast, a health and welfare LPA enables appointed attorneys to make a wide range of decisions regarding health and care once capacity has been lost, which may include decisions about life sustaining treatment, without needing to anticipate the specifics of such treatment. Whereas advance decisions can be made orally or in writing, and may be considered as evidence of wishes even if they do not meet all formalities, the requirements for creating an LPA are far stricter (including a need for the LPA to be registered with the Office of Public Guardian so that its existence becomes publicly searchable), and attorneys must only make decisions in that person’s best interests.
Consistency is key
It is possible to have both a health and welfare LPA and an advance decision in place – using an LPA for broad decision-making and an advance decision to reflect specific wishes – however it is crucial that they are drafted consistently. Attorneys acting under a health and welfare LPA cannot consent to treatment if a later valid advance decision refuses that treatment. If an LPA is made after an advance decision and authorises attorneys to make decisions about the same treatment specified in an advance decision, the LPA will override and invalidate the advance decision. If an LPA does not give attorneys power over life-sustaining treatment, or does not cover the same treatment, the advance decision continues to apply. A health and welfare LPA made alongside or after an advance decision can specify which document takes precedence for certain decisions.
Practical steps to consider
It is essential to be well-informed before making an advance decision or an LPA. Consulting a healthcare professional about particular treatments is advisable, especially when considering an advance decision. It is also beneficial to involve friends and family and to keep them informed of any specific arrangements.
If you require further information about advance decisions or LPAs, please contact one of our specialists or your usual Wedlake Bell adviser.
This article is for general information purposes only and does not constitute legal advice or a comprehensive statement of the law. Specific legal advice should always be sought in relation to individual circumstances.
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