26 July 2018

Advance Decision or Lasting Power of Attorney? Or both?

By Kieran Athow, Paralegal, Hayes + Storr.

What will happen to you in the future if you are unable to make decisions for yourself about your care and medical treatment? If you want to retain control of your own welfare you should consider making an Advance Decision or Lasting Power of Attorney for Health and Welfare (LPA)?

There are various reasons why you may lack the necessary mental capacity to make important decisions for yourself. For example, you may be involved in a car accident and become unconscious, have a stroke or suffer from dementia. The circumstances are often unforeseen, so it is sensible to be prepared.

Under the Mental Capacity Act 2005 you have the option to create an LPA or an Advance Decision when making arrangements for your future health and welfare decisions.

What happens if you don’t currently have anything in place?

People often assume that in the event that they lack mental capacity, their family can specify their medical preferences to the relevant healthcare professional. However, your family members, including a spouse or partner, have no legal authority in relation to your health and care decisions. They should ideally be consulted in all cases, but a healthcare professional is not obliged to follow what they say. In the absence of properly appointed attorneys or legally binding instructions from you, doctors and social workers may need to act in what they believe are your best interests, and their actions and decisions may not be what you would have chosen.

The only way to ensure your wishes are followed, or confer legal authority to an individual to make decisions on your behalf, is by making an Advance Decision or LPA.

Advance Decision (‘Living Will’)

An Advance Decision (sometimes referred to as a ‘Living Will’) is a legally binding document which must be followed by healthcare professionals. It enables you to give instructions about whether or not you wish to receive specific medical treatment in advance if, at the time the treatment would be administered, you lack the mental capacity to decide for yourself.

For example, you could choose to refuse all life sustaining treatment, including hydration and artificial feeding if you are in a coma for a specific period of time, or if there is little prospect of ever regaining a reasonable quality of life. You may wish to refuse blood transfusions on religious grounds.

Lasting Power of Attorney (Health and Welfare)

An LPA for Health and Welfare enables you to appoint one or more individuals to make decisions about your care and medical treatment in the event that you lack the capacity to make those decisions.

Unlike an Advance Decision, an LPA is not limited to any particular medical treatment, and covers all aspects of welfare, including where you are cared for and the type of care received, as well as day-to-day routines such as your diet.

This can be useful if you suffer from a degenerative disease such as Alzheimer’s or Parkinson’s Disease. In its early stages you may still be able to make decisions for yourself, but as the condition worsens, your ability may be compromised. Your attorney(s) will have authority to make decisions for you at any time where you lack capacity.

If you wish to do so, you can authorise your attorney(s) to make decisions in relation to giving or refusing consent to life-sustaining treatment.

Which to Choose?

An Advance Decision relates only to the specific circumstances detailed in the document. It can be hard to predict what is to happen in the future, and if the specified circumstances do not exist, doctors may decide that the document is not relevant and your wishes cannot therefore be followed.

With an LPA, the particular circumstances for its use do not need to be specified; if you lack the mental capacity to make a decision relating to your health or care, your attorney(s) will always be able to act on your behalf.

Control

An Advance Decision enables you to give detailed instructions relating to particular circumstances which may arise in future.

An LPA can include instructions and guidance for your attorneys, although because of the wide-ranging scope of the document, and because it is difficult to envisage when and for what it will be needed, many people choose to make their LPA as flexible as possible by not including too much specific detail. This means that your attorneys may need to make decisions themselves, based on what they believe you would have wanted.

Flexibility

Because its contents are more specific, an Advance Decision is generally a less flexible document than an LPA. It is quite possible that over a number of years your views about medical treatment will change (perhaps because of advances in medical science, for example), and if so, a completely new Advance Decision will have to be drawn up to supersede the first.

Provided your LPA does not contain any binding restrictions to the contrary, it can allow more scope for altering your views and wishes. For example, if you tell your attorney(s) that you do not wish to be resuscitated, but later change your mind, this can easily be communicated to them.

Can I Have Both?

If you would like to give specific instructions about certain medical treatment, and in particular about resuscitation and life support, you should consider making an Advance Decision.

If you would like to appoint individuals that you trust to make wider-ranging decisions relating to your care and medical treatment, which can include life-sustaining treatment, then an LPA is needed.

You may wish to have both an Advance Decision and an LPA in place. In this case, there are two important rules:  the two documents should not contradict each other, and you need to be aware of the order in which they are  put in place, since this has significant consequences.

If you make an LPA after making an Advance Decision, the latter may be invalidated unless the LPA is carefully worded to avoid this.

If you make an Advance Decision after making an LPA, your attorney(s) cannot override the Advance Decision but can still act on your behalf in connection with other matters within the scope of the LPA.

Both options should be considered by everybody, regardless of age or health. You may have a medical emergency or be involved in an accident leaving you without capacity. Without either document in place, your wishes may not be followed.

This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek our specific advice.

 

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