Following the introduction of health and welfare lasting powers of attorney (LPAs) under the Mental Capacity Act 2005 (MCA 2005), individuals have a choice over whether to use an LPA or an advance decision, also known as a ‘living Will’, when making arrangements for future medical treatment. Both instruments perform different functions and careful consideration should be given to which one is more appropriate.
Advance decisions allow a person to refuse specific medical treatment if, at the time in the future at which that treatment is to be given, they have lost capacity to consent to it. A valid advance decision will be as effective as a refusal of treatment by a person who has capacity, and therefore the treatment specified cannot lawfully be given. Health and welfare LPAs allow a person to appoint an attorney to act on their behalf, should they lose the mental capacity to make decisions. The attorney will have authority to make almost all personal welfare and healthcare decisions for that individual, including giving or refusing consent to medical treatment and decisions about their day-to-day care. Where a person makes an advance decision and subsequently makes an LPA, the LPA will take priority if it gives the attorney authority to make decisions about the same treatment. Where a valid and applicable advance decision is made after an LPA, the advance decision takes priority.
So what is the difference between the two and when should you use which legal mechanism? The key difference is that the individual is making their own decision when using an advance decision; they must set out the specific medical treatment that they wish to refuse. LPAs, on the other hand, are much more flexible and provide the attorney with a very general authority to make decisions on the individual’s behalf. LPAs require the individual to place a great deal of trust in the attorney.
Another important factor which may affect the decision is the need to comply with a number of formalities for an LPA. Under the MCA 2005, any decision made by an attorney must be in the individual’s best interests. There is no such principle in relation to advance decisions; if the decision is valid and applicable, it must be respected. LPAs must also be registered, whereas this is not necessary for an advance decision. This may be preferable where one needs to act quickly, but this lack of formality can lead to uncertainty over whether an advance decision exists or is valid. Where an individual is seriously ill and the situation is urgent, one might consider making both an advance decision and an LPA. The advance decision will take effect immediately and can be used until the LPA has been registered.
Therefore, the consequences of making an advance decision are quite different to those of making an LPA. An advance decision refers to specific treatment, so it is more likely to be useful when you have a specific objection, such as the refusal of a blood transfusion for religious reasons. An LPA, on the other hand, allows the attorney to make general decisions about your health and welfare, which will often be preferable if you lose mental capacity and need someone to be able to make these decisions for you. While you may have concerns about not having the opportunity to set out your own preferences, it is possible to make an advance statement in addition to the LPA, which is distinct from an advance decision. This enables you to set out your wishes about the care and treatment you would like to receive. They are not legally binding, but they should be taken into account by an attorney. You can also provide guidance for your attorney in the LPA form, and you should always ensure that you discuss your wishes thoroughly with your attorney before loss of capacity.