Advance Directive vs Lasting Power of Attorney for Health & Welfare
This year has been a challenge for us all but if we were to highlight one positive impact that the Coronavirus has had, it would be that it has made us all think about putting our affairs in order.
When planning for the future this often includes setting up Lasting Powers of Attorney (LPAs), of which there are two different types:
- Property & Financial Affairs and
- Health & Welfare.
However, there are other options, and one that often gets confused with an LPA for Health & Welfare is an Advance Directive (otherwise known as a Living Will or Advance Decision).
Both documents can only be made when you have capacity, they must be made in writing and must be signed by you in the presence of a witness who also signs the document.
Despite some similarities, these documents are very different. Chartered Legal Executive, Kat King, discusses the differences and explains a bit more about both options in this article.
What is an Advance Directive or Living Will?
An Advance Directive or Living Will is a legally binding document which allows you to make your wishes known with regard to the refusal of certain medical treatments, if you are unable to communicate these wishes yourself. It will show your doctors and your social care team your choice of treatment.
The document allows you to list the treatments you wish to refuse. For example, you can refuse to have life-sustaining treatment (such as CPR, antibiotics in case of infection, or the use of ventilation to assist breathing).
As this document will override any decisions that your family or loved ones may wish to make on your behalf, it is advisable to ensure everyone involved in looking after your best interests knows that you have made the Advance Directive and where it is kept.
It is important to highlight that by refusing certain treatments you are not requesting anyone to help you end your life and if you make an Advance Directive, you should refer to it in the instructions section of an LPA for Health & Welfare.
A copy should also be sent to the Office of the Public Guardian when the LPA for Health & Welfare is being registered.
What is an LPA for Health & Welfare?
An LPA for Health & Welfare is a legally binding document which needs to be signed in a very specific way and in a specific order, and must be registered with the Office of the Public Guardian in order to be valid.
With this document you choose Attorneys, i.e. people you trust to make decisions on your behalf. Your Attorneys can only use an LPA to make decisions for you if you no longer have mental capacity to do so yourself.
The decisions Attorneys will be able to make for you include: medical treatment, what medication you take, where you should live (whether you can stay in your own home or move into residential care), day-to-day care, and also decisions about life-sustaining treatment.
Where life-sustaining treatment is concerned, you can authorise your Attorneys or your doctors to be able to consent to or refuse life-sustaining treatment.
Within the documents you can include preferences (your wishes) and instructions for your Attorneys to follow, but ultimately an LPA puts your health and welfare decisions in the hands of those you have chosen to trust.
Can I make both?
You can, of course, have both documents in place.
However, it is important to note that if you have first made an Advance Directive and then you make an LPA for Health & Welfare, the authority you give to your Attorneys under the LPA may override the decisions in your Advance Directive.
If you make the Advance Directive after the LPA for Health & Welfare, your Attorneys may not be able to consent to any treatment which you specifically refused in the Advance Directive.
Basically, if you have both documents in place, the one which you have made more recently will take precedence.
Which one is right for me?
The main difference between the two documents is that by having the Advance Directive, you make your own choice about the treatment you wish to refuse. By making the LPA, you are leaving this choice up to your Attorneys.
Additionally, the LPA gives you more flexibility and covers many more decisions, not only life-sustaining treatment. It also allows your Attorneys the freedom to make decisions on your behalf based on what is actually happening as opposed to what might happen in the future.
However, if someone is very ill, and they wish to set out their own choices with regard to refusal of certain treatments, then they should consider making the Advance Directive, as putting an LPA in place is a lengthy process (it can take three months, if not longer).
An LPA would be a more long term solution, by choosing now who you wish to look after your health and welfare in the future, if you are no longer able to do so yourself.
If you wish to discuss making Lasting Powers of Attorney, or the Advance Decision (Living Will), please get in touch with Kat King on 01749 341805 or email kat.king@mogersdrewett.com