What is the difference between an ‘Advanced Decision’ (sometimes called a ‘Living Will’) and a ‘Lasting Power of Attorney for Health and Welfare’, and do I need both?
An Advanced Decision is a document you can put in place to refuse certain medical treatments in certain circumstances in the future, should you no longer have the mental capacity to make those decisions at that time.
An Advanced Decision cannot be used to request certain treatments, to request illegal actions (such as assisted suicide) or to refuse basic care – it can only be used to refuse medical treatment. This can include life sustaining medical treatment provided certain formalities are met when preparing the document.
Certain formalities must be met when preparing an Advanced Decision and it must be very clear and specific in content. An Advanced Decision should, therefore, be made in conjunction with the advice of a GP and a solicitor to ensure it is valid.
Lasting Power of Attorney for Health and Welfare (LPA)
An LPA is a document you can put in place to appoint person(s) as your attorney(s) to make decisions on your behalf concerning your health and welfare in the future, should you no longer have the mental capacity to make those decisions at the time.
An LPA can be used to make wide ranging decisions such as what medical treatment you should receive, where you should live and who should visit you. This can include life sustaining medical treatment decisions provided you specifically state so when preparing the document. You can also include instructions and guidance to your attorneys within an LPA, if you wish.
Certain formalities must be met when preparing an LPA and they must be registered with the Office of the Public Guardian before they can be used. An LPA should, therefore, be made in conjunction with the advice of a solicitor to ensure it is valid.
If you would like to specify what medical treatments you wish to refuse then an Advanced Decision may be appropriate for you.
If you would like to appoint persons you trust to make wide ranging decisions relating to your health and welfare matters (including life sustaining treatment decisions) on your behalf then an LPA may be appropriate for you.
It is possible to put in place both an Advanced Decision and an LPA, if you wish. However, if you are to do this it is, of course, important that they do not contradict each other. The order in which you put in place the documents is also very important.
If you put in place an LPA which gives your attorneys the right to make life sustaining treatment decisions on your behalf then this will override any earlier Advanced Decision. If you put in place an Advanced Decision after an LPA then the Advanced Decision will override the attorneys’ right to make life sustaining treatment decisions under the LPA.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at August 2018.