Living Wills – What are they and how do they differ from Lasting Powers of Attorneys for health and welfare?

We all know that a Will is a document that governs what happens to our estate on our death. But what is an Advanced Directive (sometimes known as a Living Will) and what, if anything, does it have in common with a Lasting Power of Attorney for Health and Welfare (LPA) asks Rory McFarlane of Mogers Drewett?

Provided you have mental capacity, you have the right to refuse medical treatment or to state the circumstances in which you do not wish treatment to be offered to you. You could discuss this with your GP and ask to have your wishes formally recorded as a note in your medical records. You could also choose to record your wishes formally in a separate document known as an Advanced Directive or Living Will. If an Advanced Directive includes a refusal to receive life sustaining treatment, it must comply with certain formalities: the document must be signed by you and witnessed and include a statement confirming that you understand you will die as a result of your refusal.   A valid Advanced Directive is legally binding on a doctor and will be followed.

If you have made an Advanced Directive before 1 October 2007, you should review it to ensure that it complies with new law introduced from that date by the Mental Capacity Act 2005. There is a risk that a so-called Living Will, particularly if home made, will no longer be effective following the introduction of the Mental Capacity Act.

As its name suggests, an LPA for Health and Welfare allows you to appoint one or more attorneys to take decisions on your behalf in relation to your health care and personal welfare. Such decisions can range from what to wear, eat and where to live, to expressly authorising your attorneys either to consent to, or to refuse, life sustaining treatment on your behalf.   Your attorneys are responsible for making these decisions on the basis of what they consider to be in your best interest. Ultimately, they can still be overruled by doctors responsible for your health care.

What takes precedence, an Advanced Directive or an LPA? If you had made an Advanced Directive and subsequently make an LPA authorising your attorneys to make decisions relating to life sustaining treatment, the Advanced Directive is revoked and the decision rests with your chosen attorneys. Conversely, if you have a valid LPA authorising your attorneys to make such decisions and you subsequently make a valid Advanced Directive, the Advanced Directive will take precedence, revoking the attorneys authority to make such decisions under the LPA.

If you are contemplating making or reviewing a Lasting Power of Attorney or Advanced Directive (or both), it is vital to take legal advice to discuss your options and to ensure that your wishes are properly discussed, that the documents do not contradict or over-rule one another and that they comply with all the necessary formalities.

For further advice or information on this subject please call 01935 813691.


Mogers Drewett

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