Living Wills, formally known as Advanced Decisions, allow a person who is over 18 and mentally capable to indicate what treatment they do or do not wish to receive in certain circumstances. In contrast a Lasting Power of Attorney for Health & Care Decisions (LPA) allows someone else to make decisions for you or indicate what you would want in certain circumstances, if you have lost capacity to make those kinds of decisions.
Providing it is properly completed and assuming no doubts existed about capacity at the time of making the Living Will, then the wishes contained in it must be followed. The validity of a Living Will may also be affected by the negative influence of a third party on the person making the Will. This is called undue influence.
In both cases, the decision over medical treatment always rests with you unless you have lost capacity to make the decision for yourself.
Is it possible to have both a Living Will and an LPA? In short yes but it’s not quite that simple This is because one document can cancel out the powers of the other, for example if one document is completed at a different time to the other, or they contradict each other.
For example, where a Living Will is already in existence and then an LPA without caveat is drawn up , giving attorney/s power over the same treatments listed in the Living Will , then the Living Will is invalidated.
A carefully drafted LPA can avoid this situation. If the sequence is reversed i.e. the Living Will is made second, then the Living Will takes precedence. It can also invalidate the power conferred in the LPA in respect of life sustaining treatment.
It is recommended that you inform your attorneys (both Health & Care and Financial matters) that you have a Living Will and disclose its location.
Living Wills have some advantages and disadvantages when compared to an LPA for Heath & Care. There is no requirement to register a Living Will although is it advisable to have a copy placed on your GP’s file and on your hospital notes if receiving treatment.
Living Wills are cheaper but the lack of a registration requirement can make it harder to find out if one is in existence. The LPA has much wider scope in terms of decisions it can be applied to, while the Living Will is restricted to just medical treatment. The Living Will though has one key advantage. In situations where strong views over certain types of medical treatment are held, the Living Will, if completed and executed properly, must be followed and so allows you to refuse that treatment even if medical opinion states the treatment in question was in your best interests.
Lastly, caution must be used if you are considering making an Advanced Statement which is different to a Living Will. The Advanced Statement is not legally binding although it must be taken into account when decisions are made on your behalf.
James Trescothick-Martin is an Associate Solicitor in the Private client team. He is experienced in all areas of Private Client Law including Wills, Lasting Powers of Attorney, Probate and estates.
Image by Graham Richardson under a creative commons licence