Living Will or a Lasting Power of Attorney?

Planning for the future of an individual who may lose the mental capacity to make their own choices is difficult, but often essential.

Tim Steele, a partner and specialist in older client matters at Palmers Solicitors, looks at Lasting Powers of Attorney and Advance Decisions (Living Wills), explaining the differences between the two and why it is important to carefully consider which option suits you:

“Under the Mental Capacity Act 2005 (MCA 2005), individuals can choose whether to use a Lasting Power of Attorney (LPA) or an Advance Decision when making arrangements for future medical treatment. Both differ tremendously.

“LPAs allow a person to appoint an attorney to act on their behalf, should they lose the mental capacity to make decisions. The attorney will have authority to make almost all personal welfare decisions for that individual, including giving or refusing consent to medical treatment and decisions about day-to-day care.

“Comparatively, an Advance Decision allows a person to refuse specific medical treatment in advance if, at some point in the future, when treatment is offered, they have lost capacity to give their consent to it. A valid Advance Decision can act as a refusal of treatment, and would mean that the treatment specified cannot lawfully be given.

“The important difference is that the individual is making their own decision when using an Advance Decision, so they must specify exactly which medical treatment they wish to refuse. LPAs, on the other hand, offer more flexibility and provide the appointed attorney with lasting authority to make decisions on the individual’s behalf.

“It is important to note that if a person makes an Advance Decision but afterwards makes an LPA, the LPA will have authority to make decisions about the same treatment. Whereas if an Advance Decision is made after an LPA, the Advance Decision takes priority.

“Putting in place a directive for your future care is an important decision. It is crucial to seek expert legal advice – preferably sooner rather than later.”

Palmers Solicitors specialise in advising on all aspects of LPA and Advance Decisions. For more information, please contact Tim Steele at our South Woodham Ferrers Private Client team at enquiries@palmerslaw.co.uk.