Do I need a ‘Living Will’ or a Health and Welfare LPA?
In preparing for the future, and making provision for such time when you are no longer able to make decisions for yourself, there are a number of options you should consider.
An Advanced Decision, more commonly known as a ‘Living Will’, is one common method of setting out your wishes in advance, specifically with regard to medical treatment. A Lasting Power of Attorney (LPA) for Health and Welfare in another, which allows you to specify who you wish to make decisions on your behalf if you are unable to do so.
Most commonly, people make one or the other, although it is possible to make both – providing there is no contradiction, as that could mean your wishes may be invalidated. Expert advice should be sought when making either, but particularly when drawing up both.
With a Living Will, you are able to refuse certain medical treatments in future, at such time when you no longer have the mental capacity to make these decisions. However, it will only allow you to refuse medical treatment, and this can include life-sustaining medical treatment in some circumstances – it cannot apply to illegal actions, like assisted suicide, or refusing basic care. Given the nature of the document, it should be prepared in conjunction with the advice of a GP and solicitor.
Alternatively, a Health and Welfare LPA allows you to appoint attorneys to make decisions on your behalf regarding your health and welfare in the future, in case you lose the mental capacity to do so for yourself. It enables you to give written consent to what medical treatment you should receive, where you should live and who should visit you. This too can include life-sustaining medical treatment, providing you specifically state this when preparing the document. It becomes enforceable once it is registered with the Office of the Public Guardian.
If you do decide to put in place both a Living Will and an LPA, you must ensure they do not contradict each other. The order in which you put in place the documents is crucial.
If you make an LPA which allows your attorneys to make life-sustaining treatment decisions on your behalf, then this will override any earlier Living Will. If you put in place a Living Will after making an LPA, then this will invalidate the attorneys’ right to make decisions regarding life-sustaining treatment.
Given the complexity of the documents, and particularly given the potential life-or-death nature of the subject matter, it is vital you take appropriate legal guidance in making either document.
- Sophie Robinson is a private client practitioner in the specialist Wills and Probate team at law firm Sintons, based in Newcastle. To speak to her about this or any other matter, contact Sophie on 0191 226 7812 or sophie.robinson@sintons.co.uk
