YOUR WILL. YOUR WAY.
Living Wills, Health and Welfare LPAs and Advance Statements
Living Wills (Advance Decisions) and Advance Statements often work alongside Lasting Powers of Attorney or in certain circumstances instead of. It is important to understand the circumstances in which these products would be applicable and how they work to assist in certain situations.
A Living Will is known under the Mental Capacity Act 2005 as an Advance Decision. We will refer to them as Living Wills throughout this briefing note, although this is the colloquial term it is the term clients will relate to. Clients may ask about them and whether they should make a Living Will rather than a health and welfare LPA or vice versa.
A Living Will allows a person who is aged over 18 and with capacity to refuse medical treatment that might be given at a time in the future when they lack the capacity to refuse the treatment. It means that the treatment specified in the Living Will can not lawfully be given. There are a number of important features that would need to be considered and discussed with a client who is considering instructing us to prepare a Living Will:
- The Living Will must specify a specific treatment or circumstances where treatment is refused. Clarity is important as if there is any doubt the Living Will may not be valid.
- It can not include a request to refuse basic care, offer of food or drink by both or a request for euthanasia.
- It can not demand specific medical treatment, only refuse. No one can insist on a treatment that a healthcare professional may consider clinically unnecessary, futile or inappropriate.
- It can not refuse treatment for a mental health disorder if detained under the Mental Health Act 1983.
Given the price difference clients may ask why they should do a Lasting Power of Attorney for Health and Welfare and not just a Living Will. There are differences between the two. Some clients will suit just an LPA, some just a Living Will and some both.
HEALTH AND WELFARE LPA
- A Health and Welfare LPA allows the donor to give his attorneys a general authority to refuse life-sustaining treatment
- Attorneys must make decisions in the donor’s best interests and follow the checklist in section 4 of the MCA 2005
- An LPA must follow stringent requirements for completion and it is then registered with the Office of the Public Guardian. Further copies can be obtained if lost.
- Does not legitimise euthanasia
- A Living Will needs to specify a particular treatment or circumstances and will only cover these specific issues
- The Best interest principle does not apply. If the Living Will is valid and Applicable it must be respected, even if it goes against the person’s best interests in the eyes of a medical professional
- The procedure is relatively informal and very similar to the formalities of a Will. It can lead to uncertainty over whether the Living Will exists.
- Does not legitimise euthanasia
It is important to note that if a Health and Welfare LPA is made after a Living Will it will make the Living Will invalid if the LPA gives the attorney authority to make a decision about the same treatment. If the Living Will is made after the LPA and is valid and applicable to the circumstances the Living Will will take priority.
There may be circumstances where it is appropriate to sell both a Living Will and a Health and Welfare Lasting Power of Attorney. For example, when meeting terminally ill clients who are concerned about being able to refuse certain treatment in a short time frame but require a general power as well. The Living Will is effective immediately and can work while they await the registered LPA (Which can take up to 20 weeks once filed with the OPG).
A client may wish to discuss future treatments with their healthcare professional before we complete their documents to ensure we can be accurate.
Once the living Will has been executed it is important the client notifies their doctor and provides a copy of the same. Further they should tell their family to ensure people are aware of its existence.
The MCA 2005 provides for the creation of an Advance Statement. This is different from the Living Will and Lasting Power of Attorney. It allows a person who has capacity to set out their wishes and feeling in writing about the care and treatment they would like to receive in the future.
This is a non-binding document and therefore does not have to be followed, however attorney’s under a Health and Welfare LPA should take this into account when making best-interest decisions under section 4(6) of the MCA 2005.
It is important to note that clients can express their wishes and instructions in the Lasting Power of Attorney. If this is done wrong it can bind the attorneys and not allow them to complete the clients’ actual wishes. It is difficult to change these once the LPA is registered. An Advance Statement can accompany a LPA and while the client continues to have capacity it can be changed, altered or destroyed if the circumstances change.
Please review the following situations and confirm what advice you would give the clients, including what, if any, products you would recommend.
- Mr and Mrs Smith are in their late 50s, in good health and have two children and three grandchildren. They enjoy a good quality of life and neither are receiving any medical treatment at present. Last year Mrs Smith mother died after a long battle with cancer and they had a lot of problems with the care she was provided. They are keen to plan for the future to ensure their children can be their voices if they are no longer able to make decisions for themselves. What would you advise?
- Mr Bloggs was diagnosed with early onset Alzehiemers two months ago. He knows he is going to need long term care eventually and is concerned that his wishes are followed by his family. He’s heard bad stories about care homes and would rather have care at home for as long as possible. The doctors have advised him about some of the potential treatments and situations he may face and he has strong opinions about these. What would you advise?
- Mrs Water is terminally ill and the doctors have given her approximately 6 months to live. She is aware of the palliative care she will be offered and what process will be followed if she goes into a hospice. She does not want this to happen and would like to give her children the power to end her life. What would you advise?