Planning for a time when you may no longer be able to make decisions for yourself can feel daunting. However, putting the right arrangements in place can give you greater control over your future care and provide valuable clarity for those close to you.
Two options you may come across are a Living Will and a Health and Welfare Lasting Power of Attorney (LPA). Although both can help you plan for a possible future loss of mental capacity, they work in different ways.
Understanding those differences can help you decide which option – or combination of options – may be right for you.
What is a Living Will?
“Living Will” is a commonly used term for an Advance Decision to Refuse Treatment (ADRT).
An Advance Decision allows you, while you have mental capacity, to specify particular medical treatments that you would want to refuse in the future if you subsequently lack the capacity to make or communicate that decision yourself.
Provided that an Advance Decision is valid and applies to the particular circumstances, it is legally binding and must be followed by healthcare professionals.
For example, an Advance Decision might state that you do not want a particular form of life-sustaining treatment in specified circumstances.
There are additional legal requirements where an Advance Decision concerns life-sustaining treatment. In particular, the decision must be in writing, signed and witnessed, and must make clear that it is to apply even if your life is at risk.
Importantly, an Advance Decision is about refusing treatment. It cannot be used to require doctors to provide a particular treatment.
What is a Health and Welfare LPA?
A Health and Welfare Lasting Power of Attorney works differently. Rather than making particular treatment decisions yourself in advance, you appoint one or more trusted people – known as your attorneys – who can make health and welfare decisions on your behalf if you lose the mental capacity to make those decisions yourself.
A Health and Welfare LPA can cover a much broader range of issues than an Advance Decision, potentially including:
- your medical care;
- where you should live;
- your day-to-day care and routine;
- moving into a care home; and
- decisions about life-sustaining treatment, if you have given your attorneys the appropriate authority.
A Health and Welfare LPA can only be used to make decisions on your behalf when you lack the capacity to make the particular decision yourself.
Your attorneys must act in accordance with the Mental Capacity Act 2005, including making decisions in your best interests.
What is the main difference?
The simplest way to distinguish the two is to think about instructions versus decision-makers.
With a Living Will (Advance Decision), you make a decision now to refuse specified medical treatment in particular circumstances in the future.
With a Health and Welfare LPA, you choose trusted people to make health and welfare decisions for you if you cannot make those decisions yourself.
There is also an important difference in scope. A Living Will is concerned specifically with refusing medical treatment. A Health and Welfare LPA can potentially cover a much wider range of decisions about your health, care and personal welfare.
Can you have both?
Yes. It is possible to have both an Advance Decision and a Health and Welfare LPA, and for some people this may provide a useful combination of certainty and flexibility.
However, the order in which the documents are made and the powers given to your attorneys can be important.
For example, where an Advance Decision has already been made and a later Health and Welfare LPA gives an attorney authority to make decisions about the same treatment, the later LPA may override the earlier Advance Decision. Conversely, an attorney cannot simply disregard a valid and applicable Advance Decision where the LPA does not give them the necessary authority to do so.
It is therefore important that the documents work together rather than inadvertently creating conflicting instructions.
What about an Advance Statement?
An Advance Statement is another form of future planning, but it should not be confused with an Advance Decision.
An Advance Statement can record your wishes, preferences, beliefs and values concerning your future care. For example, it could explain where you would prefer to be cared for or matters that are particularly important to you.
Unlike a valid and applicable Advance Decision, an Advance Statement is not legally binding, although people making decisions about your care should take it into account.
Which option should I choose?
There is no single answer that will suit everyone.
If you have firm views about particular medical treatments that you would want to refuse in clearly defined circumstances, an Advance Decision may be appropriate.
If you would prefer trusted family members, friends or other attorneys to consider the circumstances at the time and make decisions on your behalf, a Health and Welfare LPA may offer greater flexibility.
You may also decide that you would benefit from having both, particularly where you want to give clear instructions about certain treatments while allowing your attorneys to make other health and welfare decisions for you.
Whichever approach you take, careful drafting is important. Your wishes should be clear and your documents should complement one another, particularly where decisions about life-sustaining treatment are concerned.
How Beers can help
Planning for future care is about retaining as much choice and control as possible.
At Beers, we can advise you on preparing a Health and Welfare Lasting Power of Attorney and help you consider how it fits alongside your wider arrangements and any Advance Decision you have made or are considering.
Taking advice now can help ensure that your wishes are properly recorded and that the people you trust have the appropriate authority to act for you should the need arise.
If you would like advice about making a Health and Welfare LPA or planning for the future, please contact our team at Beers.
Contact us
Our experienced legal team is always happy to help.
Kingsbridge office
📞 Tel: 01548 857000
Plymouth office
📞 Tel: 01752 246000
With offices in Kingsbridge and Plymouth, we support clients across Devon and the South West with clear, practical advice.
This article is intended as general information about the law in England and Wales and does not constitute legal advice.