This article is taken from Helena Luckhurst’s blog The Wealth Lawyer UK
Some of my clients have definite views as to how they would like to be cared for or treated in the event that they lack capacity to explain their wishes in future. Knowing that your wishes will be respected brings peace of mind. English law provides individuals with two key choices – a Health & Welfare Lasting Power or an Advance Decision. How do you choose between the two?
First, a quick reminder of the two options:
Health & Welfare Lasting Power: This document allows the maker, or ‘donor’, to identify an attorney, or attorneys, to make decisions about social care/medical treatment if the donor becomes incapable of making these decisions himself. The Lasting Power can give the attorney authority to give or refuse consent to life sustaining treatment if required. The responsibility for making decisions rests with the attorney(s).
Advance Decision: Unlike a Lasting Power, the purpose of an Advance Decision is not to appoint someone to make decisions in the maker’s stead. An Advance Decision is, in effect, a record made ahead of time of the maker’s consent, or otherwise, to certain medical treatment. It is designed to be acted upon at a time when the maker is no longer capable of communicating his wishes. Pre the Mental Capacity Act 2005, these documents were also known as Living Wills or Advance Directives. (Any such documents made pre 1 October 2007 should be checked to ensure that they conform to the Act’s requirements.)
Which option is best depends upon the individual’s circumstances but here are some pointers:
- A Health & Welfare Lasting Power confers significant responsibility on the attorney (often a family member is chosen). Has the attorney the fortitude to carry out the donor’s wishes, or might their own wishes for their relative’s treatment cloud their decision making process? A written guidance letter may be helpful here.
- Medical practitioners are not bound to follow Advance Decisions if they decide that the wishes stated in them are not applicable to the circumstances that subsequently arise. Accordingly, Advance Decisions stand a greater chance of being adhered to if made in contemplation of a specific condition or illness.
- If provision is to be made for any general healthcare situation that may arise in future and the maker enjoys good health at the moment, a Health & Welfare Lasting Power is likely to be the better bet, if a suitable attorney can be found. By its very nature, a Lasting Power cannot be ignored on the grounds that it is not applicable – attorneys make their decisions in real time.
- The range of decisions capable of being made by an attorney under a Health & Welfare Lasting Power is greater. Decisions about where a person lives, what they eat and whom they see can be made by the attorney. Advance Decisions are limited to medical treatment only. A hybrid option is to make a Health & Welfare Lasting Power giving an attorney authority to make decisions on all matters other than consenting to life sustaining treatment and to use an Advance Decision to express one’s wishes as regards life sustaining treatment, so as to avoid placing the burden of these decisions on the attorney.
- For urgent cases, an Advance Decision has to be used. A Lasting Power takes three months or more to register and cannot be used until registered.
Helena Luckhurst, Partner, Fladgate LLP (email@example.com)