We have asked Mark Lister, solicitor and director of Fortress Law Limited, to explain the differences between Living Wills and Lasting Powers of Attorney for health and care decisions and to highlight the nature and effect of each legal arrangement.
Living Will or Lasting Power of Attorney? How to make the right choice by Mark Lister.
Planning for the future and a time when you may no longer have the mental capacity to make your own choices in life is something that many people choose not to think about and yet the alternative, to do nothing and hope that the worst will not happen, is a far more concerning prospect.
Mark Lister, a director and specialist in older client matters, looks in this article at Lasting Powers of Attorney and Living Wills, explaining the differences between the two legal arrangements and why it is important to carefully consider which option is the more appropriate choice for your circumstances.
Lasting Powers of Attorney were introduced in October 2007 yet are still widely misunderstood. Research conducted by the Office of the Public Guardian revealed that almost half of respondents (45 per cent) had never heard of Lasting Powers of Attorney, or knew nothing about it. When respondents were told about it, around a third (34 per cent) were keen to set up a Lasting Power of Attorney at some point in the future. This research dates back to 2014 and, three years on, it would be interesting to know just how many have followed through with their good intentions.
Under the Mental Capacity Act 2005, you can choose whether to use a Lasting Power of Attorney or a Living Will when making arrangements for future medical treatment. As both directives have different functions, careful consideration should be given as to which one is more appropriate.
What is a Living Will?
A Living Will allows you to refuse specific medical treatment if, at some point in the future, when treatment is to be given, you have lost capacity to give your consent to it. A valid Living Will can, for instance, act as a refusal of treatment, such as a transfusion of blood and would therefore mean that the treatment specified cannot lawfully be given. The document must give details of exactly what treatment you want to refuse and explain in what circumstances it should apply. It is also useful to give reasons for the decision, for example, religion.
If you wish to refuse life sustaining treatment then your Living Will must be in writing and signed by you in front of a witness. It must also contain a specific statement which says that your Living Will applies even when your life is at risk.
What is a Lasting Power of Attorney for Health and Care Decisions?
A Lasting Power of Attorney for Health and Welfare allows you to appoint attorneys to make decisions regarding your health and welfare when you no longer have the mental capacity to make such decisions yourself. These decisions can include decisions regarding the sort of healthcare you require, moving you to a residential care home, as well as day-to-day issues such as your diet and dress.
There is also an option for you to give your attorneys the authority to consent or to refuse life sustaining treatment on your behalf. Life sustaining treatment means care, surgery, medicine or other help from doctors that’s needed to keep you alive, for example:
– A serious operation, such as a heart bypass or organ transplant
– Cancer treatment
– Artificial nutrition or hydration (food or water given other than by mouth).
Whether some treatments are life-sustaining depends on the situation. For instance, if you had pneumonia, a simple course of antibiotics could be life-sustaining.
The main focus here is that you would be delegating such powers to your Attorneys who may not agree on the best course of action should you appoint more than one Attorney. They may even agree on giving you life sustaining treatment even though it may not be your wish. Delegating such decisions to other people can be quite stressful for them given that they will already be distressed about your then current predicament.
Do I need both a Living Will and a Lasting Power of Attorney?
It is important to note that if you make a Living Will but afterwards make an Lasting Power of Attorney, the Lasting Power of Attorney will take priority to make decisions about the same treatment. Where a valid and applicable Living Will is made after a Lasting Power of Attorney, the Living Will takes priority.
It is important to consider carefully what it is you want to achieve in creating either of the above documents and how much discretion you want your family and medical professionals to have. It is possible to have both a Living Will and a Lasting Power of Attorney for Health and Welfare, but there should be no conflict between the two documents. If you have clear feelings about what treatment you would like to refuse and in what circumstances treatment, including life sustaining treatment, is to be refused then a Living Will is the best way to record your wishes. If you want to appoint a particular person to make decisions about your day to day health and care then a Lasting Power of Attorney is the best place to do this.
Both documents allow you to have a say over how you should be treated once you no longer have the mental capacity to make those decisions yourself. Creating such documents provides guidance to relatives as to your wishes and can help to prevent family disputes over treatment or care.
What is the Difference between a Living Will and a Lasting Power of Attorney for Health and Care Decisions?
The important difference between the two documents is that you are making your own decision when using a Living Will so it must set out the specific medical treatment that you wish to refuse and the circumstances in which it should apply. Lasting Powers of Attorney, on the other hand, offer more flexibility and provide the appointed attorney with general authority to make decisions on your behalf. In other words, the Living Will is effectively you deciding before anything happens to you the circumstances in which you would and would not wish to receive certain medical treatment whereas a Lasting Power of Attorney delegates those functions to somebody else at a time when they may be very upset and may find it difficult to make a decision.
How do I Put in Place a Living Will or Lasting Power of Attorney?
Advice regarding whether to choose either a Lasting Power of Attorney or a Living Will is something which a specialist legal expert can assist with. Putting in place a directive for your future care is an important decision and there’s no time like the present for sorting this out.
For more information and advice on Lasting Powers of Attorney and Living Wills, please contact Mark Lister on the details below:-
Direct Tel: 01803 896821 Main Tel: 01803 896820 Email: Mark.Lister@fortresslaw.co.uk
Address: Belgrave House, 2 Winner Street, Paignton, Devon TQ3 3BJ