LPA and Advance Decision: Essential Guide to Protecting Your Future

Concerned about your future health and decision-making? With a Lasting Power of Attorney (LPA) and an Advance Decision, you can ensure your wishes are honoured. An LPA (Lasting Power of Attorney) allows someone you trust to make decisions on your behalf, especially when you lose the mental capacity to do so. In contrast, an Advance Decision is a legal document that lets you refuse specific medical treatments in certain situations ahead of time. This guide explains how both tools work and how they can help protect your future wishes.

Key Takeaways

• A Health and Welfare Lasting Power of Attorney (LPA) allows a trusted individual to make decisions on your behalf regarding your health and welfare when you are unable to do so.
• An Advance Decision, or living will, enables individuals to refuse certain medical treatments in the future under predetermined conditions, ensuring their wishes are followed.
• Both an LPA and an Advance Decision are essential legal tools for future planning, with the LPA granting broad decision-making authority and the Advance Decision providing specific treatment instructions.

Understanding a Health and Welfare Lasting Power of Attorney

A Health and Welfare LPA is a legal document that enables a trusted person, often a family member, to make health and welfare decisions on your behalf if you lack the mental capacity to make them yourself. This could include decisions about your medical care, living arrangements, daily routine, or care provider.

Creating a Health and Welfare LPA ensures that your health-related needs are managed according to your wishes. It allows someone you trust to have legal authority over your health and welfare decisions, ensuring that your best interests are prioritised if you lose mental capacity.

This type of LPA only comes into effect when you are no longer able to make your own decisions. It does not cover financial matters or property. For decisions about financial affairs or property and financial affairs, a separate LPA is required.

What is an Advance Decision?

An Advance Decision, sometimes referred to as a living will, is a legally binding document that allows you to refuse specific medical treatments in the future, in situations where you may be unable to communicate your preferences. It ensures that healthcare professionals understand your treatment choices and follow them.

An advance statement is a separate document where you can express your personal care preferences, beliefs, and values. Unlike an Advance Decision, an advance statement is not legally binding but guides healthcare professionals and attorneys in making decisions that align with your wishes if you lack capacity.

For an Advance Decision to be legally valid, it must meet the requirements set out by the Mental Capacity Act. It should:

• Clearly specify the treatments being refused
• Be signed and dated by you
• Be witnessed appropriately
• Outline the circumstances under which you wish to refuse treatment, particularly life-sustaining treatment

Advance Decisions allow you to refuse treatment in advance, making specific treatment refusals clear and giving you control over your medical care if you are later unable to speak for yourself.

Differences Between Health and Welfare LPA and Advance Decision

Although both documents support your autonomy, they work differently. An LPA appoints one or more attorneys to make health and welfare decisions on your behalf. If you choose more than one attorney, you can specify whether they must act jointly (together on all decisions) or jointly and severally (independently or together), giving you flexibility in how decisions are made. This choice allows your attorneys to either make decisions collectively, ensuring agreement on every matter, or to act independently on some decisions, which can provide greater convenience and responsiveness.

An Advance Decision outlines specific medical treatments you want to refuse under particular circumstances.

While an LPA gives your chosen attorney flexibility to act in your best interests across a wide range of health and welfare issues, it allows them to make certain decisions on your behalf when you are unable to do so. An Advance Decision gives clear instructions on particular treatments to be declined.

If both documents exist and there is a conflict between them, the most recent one usually takes precedence. For example, if an Advance Decision was made after an LPA was registered, it will typically override the attorney’s authority in relation to treatment decisions. If neither an Advance Decision nor an LPA is in place, the final decision about your care and treatment may rest with health and social care professionals.

How to Create a Health and Welfare LPA

Creating a Health and Welfare LPA is straightforward:

• You must be over 18 and have mental capacity
• Complete the relevant forms on the GOV.UK website
• Register the document with the Office of the Public Guardian

If you also want someone to manage your finances, you should create a separate financial affairs LPA and appoint a financial affairs attorney to handle decisions about your property and financial matters.

The registration process takes about 8 to 10 weeks and costs £82. Fee reductions may be available for those with a low income or on certain benefits.

It is important to correctly complete and register your LPA so it can be used if you later lose mental capacity. The attorney(s) named in your LPA can then step in and make health and welfare decisions on your behalf.

How to Make an Advance Decision

To create an Advance Decision, you should:

• Clearly identify the treatments you want to refuse
• Specify the circumstances under which those refusals apply
• Sign and date the document, with an appropriate witness
• Be especially clear about any refusal of life-sustaining treatment

The document must comply with the Mental Capacity Act to be legally binding. Once created, you should share your Advance Decision with your GP, care provider, and close family members or friends, so that your wishes are known and respected in the future.

Choosing Your Attorneys for a Health and Welfare LPA

You can appoint one or more attorneys to act on your behalf. When deciding who to appoint as your attorney, it is important to carefully consider who you trust to make decisions about your health and welfare. These can be close friends, family members, or a professional welfare attorney. They must be over 18 and have the ability to act in your best interests.

You can choose how your attorneys act:

• Jointly, where they must all agree on every decision
• Jointly for some decisions and severally for others

Replacement attorneys can also be appointed in case your original choice cannot act. These details help ensure that your healthcare and welfare decisions are managed smoothly and in line with your preferences.

Legal Considerations and Restrictions

Both an LPA and an Advance Decision must meet legal requirements to be valid. The Mental Capacity Act governs both documents and ensures your wishes are protected even if you later lack capacity. The decision-making process under the Mental Capacity Act requires attorneys and professionals to cover decisions in the best interests of the individual.

An LPA and an Advance Decision are designed to cover decisions about health, welfare, and care. To strengthen your future planning, it is advisable to refer to your Advance Decision within your Health and Welfare LPA. This helps your attorney consider your stated treatment preferences when making broader care decisions.

Life-Sustaining Treatment Decisions

You can authorise your Health and Welfare attorney to make decisions about life-sustaining treatment, such as whether or not to continue life support, artificial hydration or resuscitation. This includes important medical treatment, care, and treatment decisions.

Your Advance Decision must be very specific if you wish to refuse life-sustaining treatment. It must be signed, dated and witnessed to be legally binding, and the refusal must be clearly outlined.

By using both tools, you can create a legally secure structure for your care that combines general support from an attorney with your specific treatment choices.

Changing or Cancelling Your Health and Welfare LPA and Advance Decision

You can cancel either document at any time, as long as you still have the mental capacity to do so.

To cancel a Health and Welfare LPA:

• Create a deed of revocation
• Inform your attorney(s)
• Update your attorney contact details if they change
• Notify the Office of the Public Guardian
• Destroy all physical copies
• Make sure your healthcare providers are also informed of the cancellation

Cancelling an Advance Decision follows a similar process. You should destroy all copies and notify your GP and anyone else involved in your care. If social services are involved in your care, they should also be notified of any changes or cancellations.

Regularly reviewing both documents ensures they reflect your current wishes and provide the right support if your health changes.

Summary

Creating a Health and Welfare Lasting Power of Attorney and an Advance Decision helps you prepare for the future and ensures your wishes are followed if you lose mental capacity.

An LPA allows someone you trust to make general decisions on your behalf, while an Advance Decision outlines any specific treatments you do not wish to receive. Together, they give you the ability to control your future medical care and protect your right to choose.

If you’re ready to put the right protections in place, contact MJR Solicitors today. We can guide you through setting up a Health and Welfare LPA, drafting an Advance Decision, or both. Our expert team will help you make informed decisions and plan ahead with confidence.

Frequently Asked Questions