Advance Decisions vs. Lasting Power of Attorney for Health and Welfare

Guidance for Private Client Solicitors

Advising clients on planning for their future health and care decisions is a crucial part of estate planning. Two common documents available to help with this are the Advance Decision (AD) and the Lasting Power of Attorney for Health and Welfare (LPAHW).  

Let’s explore their differences and when each one is appropriate to use.  

Advance Decision

An Advance Decision, or “living will,” gives direct and legally binding instructions to a person’s medical professionals and it allows a person to refuse specific medical treatments in advance.

It provides clarity about what they do and don’t want to happen if they lose capacity, for example it is possible to say that you do not wish to be artificially kept alive in certain circumstances and where you have no prospect of recovery.

It is not, however, possible to require specific treatments of medical professionals but instead allows a person to consent to or refuse particular treatments if their medical professionals deem it appropriate. 

  • Scope: Refuses specific treatments (e.g., artificial ventilation, CPR).
  • Legal Authority: Binding under the Mental Capacity Act 2005.
  • Limitations: Cannot request specific treatments or address broader welfare decisions.

When to Recommend an Advance Decision

  1. The client has strong views about refusing certain treatments. 
  2. They have no suitable or willing candidate to act as an attorney. 
  3. They want to set absolute limits on treatment regardless of an attorney’s preferences. 
  4. The client is going to be undergoing a risky procedure and there is insufficient time to get an LPA registered. 

Lasting Power of Attorney (LPA) for Health and Welfare

An LPA for Health and Welfare allows a client to appoint one or more trusted individuals (attorneys) to make decisions about their health and care if they lose capacity. This includes consenting to or refusing treatment, including life sustaining treatment if this is specifically authorised, as well as broader welfare matters. An LPA has a broader scope than an Advance Decision and can cover decisions on treatment, care, living arrangements, and more.   

Attorneys can act only once the LPA has been registered and if the donor lacks capacity. A  particular advantage to LPAs is that they offer flexibility because the Attorney(s) can respond to situations and medical advice as they arise.  

It must, however, be remembered that LPA’s can only be relied upon once they have been registered with the OPG and this registration period can be many weeks. If there is a pressing need to have a document in place to determine what should be consented to in the case of incapacity (such as an imminent operation) then perhaps an Advance Decision is the better document (or both documents could be made in conjunction so that there is cover during the registration period). 

When to Recommend a Lasting Power of Attorney Health and Welfare

  1. The client has trusted individuals to act on their behalf. 
  2. They want decisions to reflect evolving circumstances. 
  3. They prefer broader coverage, including non-medical welfare decisions. 
  4. There is no pressing need for a document to authorise/refuse certain treatment in the case of incapacity. 

The Key Differences Between an Advance Decision and a Lasting Power of Attorney Health and Welfare

Using Both an Advance Decision and a Lasting Power of Attorney Health and Welfare Together

For comprehensive planning, clients can use an Advance Decision and an LPA for Health and Welfare together. An AD can provide clarity about specific treatment refusals, while the LPA ensures broader decisions are made by trusted individuals. However, timing is crucial: 

  • If an AD is created after an LPA, it takes precedence for the treatments it specifies. 
  • If an LPA expressly allows life-sustaining decisions, it may override an earlier AD. 

However, it is possible to draft both documents to take effect subject to the other: for example, an LPA can state that it subject to an existing Advance Decision – this means that the attorneys would have all of the powers set out in the LPA except where these have been specifically set out in the Advance Decision, which would take precedence. 

Example Scenarios for Client Advice

  1. Advance Decision Only:
    A single client with no close family wants to refuse life-prolonging treatment in case of a terminal illness. An AD ensures their specific wishes are respected without requiring an attorney.
  2. LPA for Health and Welfare Only:
    A married client with trusted adult children prefers to give them the flexibility to make decisions about both care and medical treatment, depending on the situation.
  3. Both AD and LPA:
    A client with strong views about refusing invasive treatments appoints their partner as an attorney under an LPA but also creates an AD to refuse those specific treatments, ensuring their boundaries are respected. 

Drafting an Advance Decision in Arken Professional

You can draft both an Advance Decision in Arken Professional and a Lasting Power of Attorney Health and Welfare (with specific provisions for ensuring that both documents can coexist and operate in a complimentary fashion).  

To find out how to draft an Advance Decision, watch this product tour. 

 

Drafting a Lasting Power of Attorney in Arken Professional

To find out how to draft a Lasting Power of Attorney in Arken Professional, watch this product tour here.

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