What is an Advance Decision (Living Will)?
An Advance Decision is an instrument which allows you to refuse specific medical treatment, for example life-sustaining treatment due to it conflicting with your values and beliefs.
An Advance Decision cannot be used to request your life to be ended or to refuse basic care required to ensure that you are comfortable, for example refusing food or drink by the mouth.
The Advance Decision must be created whilst you retain your mental capacity and will be consulted should there ever be a time when you are unable to communicate your wishes yourself, for example because you are unconscious following an accident or because of an illness, such as Alzheimer’s Disease.
An Advance Decision is legally binding, which means that it must be followed. An Advance Decision does not necessarily need to be in writing, but it will need to be in writing and executed in the correct way if you are refusing treatment that is potentially life-sustaining.
You do not need to instruct a Solicitor in order to put an Advance Decision in place, however a Solicitor will have the relevant experience required to ensure that the wording used complies with the Mental Capacity Act 2005.
What is a Lasting Power of Attorney for Health and Welfare (LPA HW)?
An LPA HW is a legal document that allows you to appoint individuals that you trust (your ‘attorneys’) to make decisions in respect of your health and welfare should you ever lose the mental capacity to communicate those decisions yourself.
Although you are providing someone else with a wide-ranging power to make health and welfare decisions on your behalf, you can still include preferences and instructions in your LPA HW should you have any specific requests in respect of your health and welfare.
The types of decisions that your attorneys can make for you include where you live, what you eat and what type of medical care you should receive. You can also choose to give your attorneys the authority to make decisions on your behalf in respect of life-sustaining treatment.
Differences between an Advance Decision and an LPA HW
Like an Advance Decision, an LPA HW must be created whilst you retain your mental capacity. A Solicitor will have the relevant experience to assess whether you have the required mental capacity to put the document in place or whether a medical assessment is required to confirm this.
The main difference between an Advance Decision and an LPA HW is that an LPA HW appoints somebody else to make decisions on your behalf, rather than you making the specific decision yourself. An LPA HW allows for a more flexible approach to decision-making, as it allows your attorneys to take all circumstances into account at the time that a decision needs to be made.
Generally, whichever document is created most recently takes priority, for example, if an Advance Decision is put in place after creating your LPA HW, then your attorneys cannot consent to any treatment that has been refused in the Advance Decision.
The relationship between an Advance Decision and an LPA HW is complex, and it is always best practice to consult a legal professional before putting either document in place.
What is an Advance Statement?
An Advance Statement, unlike an Advance Decision or LPA HW, is not legally binding and therefore does not need to be followed. However, an Advance Statement is useful in that it can provide more detailed information about your likes and dislikes when it comes to medical treatment and your care, for example, what you like to eat, where you would prefer to be cared for or your religious beliefs.
An Advance Statement can accompany your LPA HW to give your attorneys a greater understanding as to how to make decisions on your behalf that would coincide with your own morals and beliefs.
It is important to let your loved ones or your attorneys know where your Advance Decision or Advance Statement can be located, and it is recommended that you register such documents with your GP or medical professional.
If you wish for further advice about end of life planning, please do not hesitate to contact one of our legal professionals in the Wills and Probate team for a confidential discussion.
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