Planning for a time when you may not be able to make decisions for yourself is not always straightforward. If the worst were to happen, and you lost capacity to make decisions about your health or care, would your loved ones or those providing you with care know how you would want to be treated? An important part of planning for the future can be making these decisions in advance so that, if needed, there are tools in place to support your family and ensure your wishes around health and care are respected. The choice of the specific tool to use, however, can be complicated.

Under the Mental Capacity Act 2005, individuals can choose to use either an Advance Decision (often known as a “Living Will”) or a Lasting Power of Attorney (LPA) for Health and Welfare, when making decisions about future health and care. As these two documents have different functions, careful consideration should be given as to which is more appropriate for you, and the relationship between them.

What is an Advance Decision?

The Advance Decision has a relatively narrow remit: it allows you to refuse specific medical treatment (such as resuscitation, surgery or blood transfusion) if, at some point in the future when that treatment is being offered, you have lost capacity to give consent to it. A valid Advance Decision will therefore act as a refusal of consent, meaning the treatment specified cannot lawfully be given.

What is an LPA for Health & Welfare?

The LPA for Health and Welfare, on the other hand, is a much broader tool. It allows you to appoint an attorney to act on your behalf in the event that you lose capacity to make decisions. The attorney will have authority to make almost all personal welfare and healthcare decisions for you, including giving or refusing consent to medical treatment and decisions about day-to-day care.

Advance Decision vs LPA – what is the difference?

The important distinction between these documents is that, with an Advance Decision, the individual is setting out their own decisions and therefore must outline the specific medical treatments they wish to refuse. The LPA, however, offers more flexibility and provides the attorney with general authority to make decisions on your behalf.

It is not necessary to choose between these approaches: it is possible for an individual to make both an Advance Decision and an LPA, however the timing is crucial. If a person makes an Advance Decision and then subsequently makes an LPA, the LPA (and therefore the attorney appointed under it) will take priority when it comes to making decisions about the same treatment. Where a valid Advance Decision is made after an LPA, the attorney would have to adhere to what has been set out in the Advance Decision for those specific treatments. If both an LPA and Advance Decision and are put in place, it is important that the two do not conflict, in order to ensure your true wishes regarding health and care decisions can be followed.

Making an Advance Decision in addition to the LPA can ensure specific treatments can be refused, however making your wider preferences for health and care known in advance to support your attorney is also possible. Making an ‘Advance Statement’, which is distinct from an Advance Decision, enables a person to specify their wishes about the care and treatment they would like to receive. Although not binding, in practice, the Advance Statement will normally be taken into account by an attorney.

How we can help

Making these decisions is not always easy, and careful planning in advance is essential in order to make your wishes known and to support your loved ones at what may be a difficult time. Advice regarding whether to choose either an LPA or Advance Directive is something we would be happy to assist with.

For more information and advice on Lasting Power of Attorney, Advance Decisions and Advance Statements, please speak to your usual Druces contact or: 

• Alice Johnson on +44 (0)20 7216 5541 or a.johnson@druces.com