Planning for the future and a time when an individual may no longer have the mental capacity to make their own choices in life is something that many people choose not to think about and yet the alternative – to do nothing and hope that the worst will not happen – is a far more concerning prospect.
Tim Steele, a partner and specialist in older client matters, looks at Lasting Powers of Attorney and Advance Decisions (Living Wills), explaining the differences between the two legal arrangements and why it is important to carefully consider which option is the more appropriate choice for an individual’s circumstances:
“Lasting Powers of Attorney (LPA) were introduced in October 2007 yet are still widely misunderstood. Research conducted by the Office of the Public Guardian revealed that almost half of respondents (45 per cent) had never heard of LPA, or knew nothing about it. When respondents were told about it, around a third (34 per cent) were keen to set up an LPA at some point in the future. This research dates back to 2014 and, two years on, it would be interesting to know just how many have followed through with their good intentions.
Under the Mental Capacity Act 2005 (MCA 2005), individuals can choose whether to use an LPA or an Advance Decision when making arrangements for future medical treatment. As both directives have different functions, careful consideration should be given as to which one is more appropriate.
An Advance Decision, as the term suggests, allows a person to refuse specific medical treatment if, at some point in the future, when treatment is to be given, they have lost capacity to give their consent to it. A valid Advance Decision can, for example, act as a refusal of treatment, for example a transfusion of blood and would therefore mean that the treatment specified cannot lawfully be given.
Health and Welfare 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 and healthcare decisions for that individual, including giving or refusing consent to medical treatment and decisions about their day-to-day care.
It is important to note that if a person makes an Advance Decision but afterwards makes an LPA, the LPA will take priority to make decisions about the same treatment. Where a valid and applicable Advance Decision is made after an LPA, the Advance Decision takes priority.
The important difference is that the individual is making their own decision when using an Advance Decision so they must set out the specific medical treatment that they wish to refuse. LPAs, on the other hand, offer more flexibility and provide the appointed attorney with general authority to make decisions on the individual’s behalf.
There are occasions where both a person’s specific medical wishes and an LPA can run side by side. Making an ‘Advance Statement’ in addition to an LPA, 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 legally binding, in practice they will normally be taken into account by an attorney.
Advice regarding whether to choose either an LPA or a Living Will is something which a specialist legal expert can assist with. Putting in place a directive for your future care is an important decision and there’s no time like the present for sorting this out.”