Health and welfare LPAs vs. Advance Decisions

This is a guest post by Sandra Angus, Chartered Legal Executive at TWM Solicitors

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Since October 2007, and the introduction of Lasting Powers of Attorney (LPAs), individuals can appoint trusted family members or friends to make decisions about health and welfare issues on their behalf, if they lose the mental capacity to make such decisions themselves.

A key feature of the Health and Welfare LPA is that you can grant a specific power to your attorneys so they can make decisions about life-sustaining treatment for you.

This is any treatment that is considered by a doctor to be necessary to keep you alive and can mean a major surgical procedure such as an organ transplant, or more day-to-day treatment such as a course of antibiotics, artificial nutrition or hydration.

Before the introduction of the Health and Welfare LPA, you could make an advance decision (more commonly known as a living will) to refuse life-sustaining treatment in a future situation where such treatment is to be given and you no longer have the capacity to refuse it.

Advance decisions were given statutory footing in October 2007 by the Mental Capacity Act 2005, the same Act that brought in LPAs.

An advance decision may have been created long before there is a situation where it applies.

It can be difficult to prepare a document that will cover all the possible treatments that may be available and all the relevant circumstances that may arise in the future.

But attorneys with the power to make decisions about life-sustaining treatment can apply their knowledge of your values and beliefs to respond to the particular circumstances and make decisions reflecting what you would have chosen if you had been capable.

The Health and Welfare LPA allows you to put these decisions into the hands of those who know you well. Without it, these decisions will be made by healthcare professionals instead.

However, for those who are uncomfortable with putting their family and friends in a position to make such difficult decisions, the advance decision remains a valuable alternative.

Even if the advance decision does not cover the specific situation, as an expression of your views it can provide helpful guidance to the healthcare professionals of the treatments you would have chosen if you were capable.

For those with strong views about being kept alive artificially, these documents are essential so your voice can be heard if you no longer have the capacity to express yourself.

For further information or to discuss particular issues, please contact Sandra Angus at sandra.angus@twmsolicitors.com.