Every year, thousands of Welfare Lasting Powers of Attorney are registered by the Court.  These give trusted individuals the right to make life decisions over the person concerned.  The Lasting Powers of Attorney are normally drafted very widely.  They might decide where someone should live, who they should live with, what treatment they should receive, what care they should receive, even what they should eat.

It is a fact that the Court itself rarely grants the equivalent order, that being Welfare Deputyships.  The number of Welfare Deputyships granted each year is normally well under 100.  This is because the Court does not like to give any individual such wide sweeping powers. Perhaps you should not?

An alternative to making a Welfare Lasting Power of Attorney is to make an Advance Statement specifying how you would like to be treated following the lack of capacity.  These statements are of course much more limited than a Welfare Lasting Power of Attorney.  That might be a good thing or a bad thing, depending on the circumstances.  It is of course impossible to make decisions for every eventuality in the future; therefore Advance Statements may not deal with a particular issue.

Furthermore, it is only possible to make an Advance Decision not to do something.  Even there, Advance Statements are limited, in that you cannot make an Advance Statement to achieve assisted ending of one’s own life.

You can however make an Advance Statement that deals with life sustaining treatment. If you wish to do this, then it is a requirement that this statement be in writing, signed by the individual and witnessed.  With such issues, it is best to have the statement drawn up by lawyers, as that reduces the chance of it being challenged.

Also if an Advance Statement is made with a lawyer and then the person changes their mind, they can go back to the lawyer who prepared the Advance Statement, so there is a clear record of the withdrawal of the change.

The advantages of an Advance Statement over a Welfare Power of Attorney are that they are quicker and cheaper and deal with specific issues.  They do not rely on the discretion of the person given the Lasting Power of Attorney. 

A recent example of an Advance Statement being held to be effective is the case ofRGB v Cwm Taf Health Board & Others [2003] EWHC B23, where a lady who suffered from advance Alzheimer’s had previously made a statement. She expressed her desire that she did not want to live with her husband if she was discharged from hospital, but to live with her daughter. At the same time of making the statement, she instigated divorce proceedings that were never concluded.  Her husband literally wanted to take her back, but the Court held that her decision was effective.