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Lasting Powers of Attorney: Health & Welfare vs Advanced Directives

A Lasting Power of Attorney helps clients plan for the own welfare in the event of them becoming vulnerable or mentally incapacitated.

In an era where personal autonomy and the right to make informed decisions about one’s health and welfare are paramount, understanding the mechanisms that allow people to maintain control even when they may no longer have the capacity to make decisions is crucial.

Two key tools in this regard are Health and Welfare Lasting Powers of Attorney (LPA) and Advanced Directives (also known as Living Wills). These legal instruments ensure that wishes regarding medical treatment and personal care are respected and followed, even if you become incapacitated. Lets take a look at the differences in order that you can assist your client to make the right decision for them.

Health and Welfare Lasting Powers of Attorney (LPA)

A Health and Welfare LPA is a legal document that lets you appoint one or more trusted individuals (known as attorneys) to make decisions on your behalf about your health and personal welfare. This can include decisions about medical treatment, where you should live, and your daily routine (such as diet and personal care) if you lose the mental capacity to make these decisions yourself.

Key Features of Health and Welfare LPA

  1. Appointment of Attorneys: You can choose who you want to act as your attorney(s). This could be a family member, friend, or a professional. It’s important to choose someone you trust and who understands your wishes and values.
  2. Scope of Decisions: The LPA can cover a broad range of decisions, from major healthcare decisions (like whether to consent to surgery) to everyday matters (like your diet and routine).
  3. Activation: A Health and Welfare LPA only takes effect when you are deemed to have lost the capacity to make these decisions yourself. This is determined by medical professionals.
  4. Legally Binding: Once registered with the Office of the Public Guardian, the document is legally binding. This means that healthcare providers and other relevant parties must respect the decisions made by your attorney(s).
  5. Advanced Consent: You can include specific instructions or preferences in your LPA. For instance, you might state that you do not wish to receive certain types of medical treatment.

Advanced Directives (Living Wills)

An Advanced Directive is a written statement that sets out your wishes regarding medical treatment in circumstances where you might not be able to communicate them yourself. Unlike an LPA, it does not appoint someone to make decisions for you but instead provides clear guidance to medical professionals about your treatment preferences.

Key Features of Advanced Directives

  1. Treatment Preferences: An Advanced Directive allows you to specify which treatments you do or do not want. For example, you might refuse life-sustaining treatments such as resuscitation or mechanical ventilation in certain situations.
  2. Legally Recognized: Advanced Directives are legally recognized and healthcare providers are obligated to follow the instructions laid out in the directive as long as they are valid and applicable to the situation at hand.
  3. Conditions and Contexts: You can outline specific conditions under which you refuse treatment. For instance, you might specify that you do not want certain treatments if you are diagnosed with a terminal illness or are in a permanent vegetative state.

Can my client make both?

You can have both documents in place but it’s 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.

Essentially, if you have both documents in place, the one which you have made more recently will take precedence.

Which one is right for my client?

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 have a client query you would like to discuss in more detail, contact the team on 01522 500823 or enquiries@btwc.co.uk

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