Advance Decision or Health and Welfare LPA?

Insights - 08/07/2019

Charlotte Thomas, Senior Associate Solicitor in our Wills, Trusts and Estate Administration department explores the options available when planning for your future, in regards to any medical treatment. Below she looks into the differences between a Health and Welfare Lasting Power of Attorney (LPA) and a Living Will.

A lot of emphasis is placed upon the importance of planning for loss of capacity in the context of financial matters, but it is equally important to plan ahead in respect of your health and any future decisions that may need to be taken on your behalf concerning your medical treatment. So what options are currently available?

You could consider making a Health and Welfare Lasting Power of Attorney (LPA). This enables you to formally appoint one or more individuals (known as your ‘Attorney(s)’) to make health and welfare based decisions on your behalf. The LPA must be registered with the Office of the Public Guardian before it can be used, and it only takes effect if you have lost capacity to make the decision yourself. This is in contrast to the Property and Financial Affairs LPA, which can be used by your Attorneys even whilst you still have mental capacity.

A particular feature of the Health and Welfare LPA is that you can grant your Attorneys formal authority to give (or indeed refuse) medical treatment on your behalf if you wish to. In essence, the LPA allows you to delegate a broad range of decisions to your Attorneys.

An alternative option is to make an Advance Decision, otherwise known as a ‘Living Will’ or ‘Advance Directive’. This allows you to specify your wishes regarding medical treatment that you may require in the future, including treatment that you do not wish to receive in certain prescribed circumstances. In effect, therefore, the decision about what treatment you receive (or do not receive) is set out in advance as opposed to being determined at the relevant time as would be the case under a Health and Welfare LPA. There are no formal registration requirements for an Advance Decision.

It should be borne in mind that medical professionals involved in your care must take into account any wishes that you have expressed in an Advance Decision, but are not bound by them. Furthermore, there is no statutory obligation to consult with your family in order to determine the most appropriate course of treatment, and they must follow the Advance Decision if they believe that it is in your best interests to do so even if this conflicts with the views of your family. By contrast, they have a duty to consult with any Attorney who is appointed under a Health and Welfare LPA and can challenge an Attorney’s decision only in very limited circumstances (and only with Court of Protection approval).

Due to the varying scope and effect of these documents, it is advisable to explore the options fully and to take advice before deciding which option is most suited to your circumstances.

If you have any questions or queries regarding the above or if you have any other questions regarding Wills, Trusts and Estate Administration please contact Charlotte Thomas by telephone on 01737 854 564 or by email at [email protected] 

Disclaimer:

Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.