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Can I make decisions now for my future health, welfare and medical treatment?

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Posted by Kate Anderson on 24 April 2020

Kate Anderson Chartered Legal Executive

Some of us may have particular wishes about our personal health and welfare which we would like to record. A health and welfare lasting power of attorney (LPA) or an advanced decision (also known as living will), can be used to ensure your wishes are followed in relation to your health, welfare and medical treatment should you lose capacity to make the decisions yourself in the future.

An LPA is a legally binding document which allows you to appoint trusted individuals to make certain decisions for you. There are two types of LPA; one which concerns health & welfare decisions and one relating to property & financial affairs.

An advance decision can be used to legally record your choice to refuse to receive certain medical treatments in the future. It would only be used should you lose capacity to provide consent to the treatment.

We explore how these documents may benefit you and your loved ones in the event that you are no longer able to make decisions concerning your health, welfare and medical treatment.

Health & Welfare LPAs

Your attorneys could use a health and welfare LPA to make decisions on your behalf concerning matters such as:

  • Your daily routine;
  • The medical treatment you receive;
  • Where you live, including moving into a care home; or
  • life-sustaining treatment.

Your attorneys must act in your best interests however you can express guidance and instructions in the LPA and set out your specific wishes in various circumstances.

You should be confident that the attorney(s) you choose know you well and will be happy to make decisions for you. Your attorney(s) could be a relative, friend or a professional. They must be over 18 years old and have mental capacity themselves. The attorneys will only be able to use this type of LPA if you have lost the capacity to make the decision yourself.

The attorneys cannot use the LPA until it is registered with the Office of the Public Guardian (OPG) which usually takes 8-12 weeks.  It is a good idea to ensure that your attorneys can access the original or a certified copy of the LPA in case it is needed.

What happens without a health & welfare LPA?

  • Your next of kin could be consulted about treatment you would receive after you lose capacity to make decisions yourself. Nevertheless, it would ultimately be your doctors who decide what is your best interests. It is a common misconception that your family would have the final say.
  • Your family may have little control over where you live, especially if social services step in to determine when and where you receive care.
  • You could receive life-sustaining treatment that you do not want, such as being resuscitated against your wishes.
  • An application to the Court of Protection may be required to make the decisions about you, which is often costly and time-consuming.

Advance Decisions

If you wish to refuse certain medical treatments in the future, or only receive treatment in some circumstances it may be appropriate to make an advance decision.

It is important to note that some decisions cannot be made by an advance decision. These include illegal acts, requirements to be treated with certain procedures or the refusal of basic care.

An advance decision can be used to refuse life-sustaining treatment. For example, you could refuse to receive artificial nutrition and hydration (ANH or commonly known as feeding through tubes), ventilation, antibiotics or cardiopulmonary resuscitation (CPR). 

An advance decision will be effective as soon as the document is signed and witnessed. An advance decision does not need to be registered with the OPG, however it is a good idea to keep the document under review to ensure it continues to reflect your wishes if your circumstances changed.

Can I have both a health & welfare LPA and an advance decision?

It is possible to have both an LPA and advance decision in place. However, it is important to be aware of how they interact with each other and check they do not contradict each other. Moreover, you may need to seek professional guidance to ensure the documents would not invalidate one another.

Want to know more?

If you are considering a health & welfare LPA or advance decision you need to make sure you clearly understand the impact it will have. You may wish to discuss its effects with a healthcare professional and/or your family and friends. If you would like to know more or have any questions about this article, please get in touch with a member of the Private Client team who will be happy to assist you.

About the author

Kate Anderson

Chartered Legal Executive

Kate advises clients on powers of attorney and estate planning including the preparation and use of wills and trusts.

Kate Anderson

Kate advises clients on powers of attorney and estate planning including the preparation and use of wills and trusts.

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