When someone is not able to make their own decisions about their medical care, healthcare professionals will provide treatment that is in the patient's best interests. However, their decisions may not necessarily be what the individual would want. In this article, we look at the two main documents – Advance Decisions and Lasting Powers of Attorney – that individuals can put in place to ensure that their wishes are followed.

We highlight some of the issues around these and conclude that while Advance Decisions give more certainty that an individual's precise wishes will be followed, Lasting Powers of Attorney allow for more flexibility in changing circumstances.

Contemplating your own mortality is not fun, but if we do think about it, many of us imagine that we will drop dead in the street, or die in our sleep after a long life and without warning. However, in practice, many people will have a period, often at the end of their lives, when they are no longer able to make their own medical decisions.

There are two different documents that can be put in place now, which will guide your medical care in those future circumstances.

Health and Welfare Lasting Power of Attorney

A Lasting Power of Attorney appoints one or more people (known as 'attorneys') to take decisions for you. The attorney's decisions then must be followed by institutions or professionals.

There are two types of Lasting Power of Attorney: Property and Finance and Health and Welfare. By a Health and Welfare LPA (or 'LPA') you appoint attorneys to make decisions about your health and welfare when you cannot do so yourself. Your attorneys will then be responsible for making decisions about all aspects of your health and welfare including where you would want to live, how you would want to be cared for or even your end of life care. 

An LPA can include any specific instructions and preferences you may have. In this way, you can give the attorneys guidance which they can follow when the time comes. You can also give them guidance in a separate document called an 'Advance Statement'.

Advance Decision

An Advance Decision ('AD') is sometimes known as a 'Living Will'. It is a statement which you write now making decisions about your medical care in the future (when you no longer have capacity to give or refuse consent to treatment). It can only refuse care (not demand it) and is generally used for more 'medical' than 'welfare' issues. It can include refusing 'life-sustaining treatment'

If an AD is valid, it carries the same weight as a contemporaneous decision and therefore must be followed by your doctors and, indeed, your family or loved ones. 

An AD is therefore different from an LPA in that you are making the decisions, not delegating them to someone else, as is the case with an LPA.

Which is right for me?

As ever, what is right for any individual will depend on their own circumstances.

An AD allows you to make the decision for yourself. It therefore gives certainty that your wishes will be followed. However, in order for medics to be certain that when they follow it they are doing what you want, the AD has to be specific to that situation. It can be difficult when writing an AD to know what the situation will be (perhaps many years in the future). The risk therefore is that the AD may not be specific enough to be followed.

Another advantage of an AD is that it is effective immediately. This may be particularly helpful for those who are already unwell and fear they may lose capacity. In contrast, an LPA must be registered with the Office of the Public Guardian before it can be used, a process which can take several months.

On the other hand, an LPA allows flexibility for changing situations, attitudes and medical care. Your attorneys can make decisions based on the facts in front of them at the time. In addition, because it is registered it is much easier to find an LPA than an AD in a time of crisis. It is therefore very important for those who have made ADs to share them with their family and medical professionals.

What if you have both?

Imagine a situation where an individual has an AD that says that they do not want life-sustaining care, but has also appointed attorneys under an LPA. Their attorneys (their loved ones) want the doctors to do everything they can to keep that person alive.

In these circumstances, everything will depend on the timing of the two documents. Essentially, the most recent will prevail. It is therefore crucial that if you do have both documents you, ideally, ensure that the most recent reflects your wishes and, in any event, that your attorneys are aware of the wishes in your AD.

What about 'next of kin'?

On the television and in films, we often see the 'next of kin' being consulted in these circumstances. However, legally, the next of kin have no formal standing to make medical decisions. Their role then is to help determine what is the patient's best interests. In a conflict between family members, or if the family disagreed with the medics, their decisions would not necessarily be followed.

What do I need to do?

As the first ten minutes of any episode of Casualty show, no one knows what is round the corner for their health. Putting a formal document in place which ensures that your wishes would be followed is hugely valuable for your peace of mind now and your loved ones in the future. For more information and advice, please get in touch with a member of our Private Wealth team.

Related briefings/project/sector pages

Links to other recent articles on LPAs can be found here and here.