What is the difference between a Living Will and a Lasting Power of Attorney?

Planning for the future and a time when you or a loved one loses mental capacity can seem a little daunting and most choose not to think about it. Although the thought may be unnerving – to do nothing and hope for the best would be a worse situation for anyone to be in.

The Health & Welfare of you or your loved ones will most likely be high on your planning agenda therefore it is important to make sure that when the time comes when you or your loved one can no longer make decisions for themselves their wishes are followed through.

What is a ‘Living Will’?

A ‘Living Will’ or Advance Decision is a declaration of your refusal to specific treatments if you lose mental capacity before or at the time the treatment is being considered. An Advance Decision cannot be used as consent to certain treatments only refusal. For example you may want to opt to refuse life sustaining treatment but if you were seriously ill and needed a blood transfusion this would not be able to be lawfully given by the medical practitioner as you cannot consent to the treatment and neither can your loved ones.

To be legally binding the Advance Decision must comply with certain requirements. The document must detail exactly what treatments you want to refuse and give an explanation as to why and in what circumstances the decision should apply.

If it is life sustaining treatment that is to be refused the document must be in writing and signed in front of an independent witness.

What is a Lasting Power of Attorney for Health & Welfare?

A ‘Living Will’ or Advance Decision is sometimes viewed as an alternative to a Lasting Power of Attorney for Health & Welfare. However, a Lasting Power of Attorney for Health & Welfare does give the right to your attorney to make decisions about any treatment you need to receive and follow your wishes regarding treatment you don’t want to receive.

A Lasting Power of Attorney for Health & Welfare allows the person making the Power of Attorney ‘the Donor’ the right to give someone of their choice authority to make decisions on their behalf when they no longer have mental capacity to make the decisions themselves.

These decisions can include any healthcare you require, moving into residential care, day to day issues like your diet and dressing as well as decisions regarding any medical treatment you may need. This document also gives your attorney the authority to either consent to or refuse life sustaining treatment whereas a ‘Living Will’ cannot.

The LPA document also allows you to include guidance notes, restrictions and conditions on your attorneys regarding your treatment.

Do I need both documents?

It is important to note that the timing and order in which the Lasting Power of Attorney or Living Will is made will effect the validity of each document. If a Living will is made and then a Lasting Power of Attorney; the Lasting Power of Attorney will override the Living Will’ Vice Versa if the LPA is made first followed by the Living Will then the Living Will will override the LPA.

There are occasions where a Lasting Power of Attorney and a person’s medical wishes can run adjacently. This would involve making a statement. The statement is not legally binding and acts like a direction not an absolute decision.

It is possible to include a statement with the Lasting Power of Attorney and register these wishes at the same time as the Lasting Power of Attorney.

Which is best for me?

If you decide to have both documents in place it is of upmost importance that there is no conflict between the wishes stated in the two documents.

The decision regarding your Health & Welfare is ultimately yours, however, it is always advisable to prepare for your future and safeguard against a decision being made that you would not want.

At Chadwick Lawrence our team of experts will explain thoroughly your options and give you the best advice in order to make sure your wishes are carried out.

For advice on Lasting Powers of Attorney or Wills  contact our team on 0800 015 0340 to arrange an initial free half hour appointment at any of our offices in Huddersfield, Halifax, Wakefield, Horbury, Leeds, Pudsey or Morley.