Estate PlanningLasting Power of AttorneyHealth and Welfare LPAs and Advance Decisions

24th March 2021Manisha Chauhan0
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In a previous article we had a look at advance decisions and what they can and cannot do. To recap, an advance decision is a decision you can make to refuse certain treatment at some point in the future when you no longer have capacity. It is important to clarify that you must have capacity at the time the advance decision is made.

It is also a way of ensuring your family and medical professionals are aware of your wishes for treatment when you are unable to inform them yourself i.e. due to dementia. Here are some examples of what you can include in an advance decision:-

  • You may not want a blood transfusion due to your religious beliefs.
  • If you are terminally ill or become unresponsive, you may not want to be kept alive by being fed through a tube.
  • If you are very ill and only expected to live for a few more days, you may not want medication to treat an infection.

This document comes into effect once you have lost capacity and for this reason, there is an overlap with a health and welfare LPA. Can both documents exist side by side though? Let’s have a look at this in more detail below.

If an LPA is created after an advance decision, the attorneys named in the LPA will be able to override what is written in the advance decision, providing they have the authority to give or refuse life sustaining treatment on behalf of the donor.

If an advance decision is created after the health and welfare LPA where the attorneys are given the authority to make life sustaining treatment decisions, the attorneys named in the LPA will not be able to consent to any treatment that you have refused and which is set out in your advance decision.

Where the LPA does not give the attorneys authority to give or refuse consent to life sustaining treatment, this does not override the advance decision.

However, if the advance decision should be taken into account and used alongside the LPA rather than overridden, the advice from the Office of Public Guardian (OPG) is that an instruction should be included in section 7 of the health and welfare LPA making reference to the advance decision…

“My attorneys must not make any treatment decisions regarding [description of specific decisions already covered by AD] as I already have an Advance Decision in place dealing with these matters”.

A copy of the advance decision should be included when the LPA is sent to the OPG for registration.

If you’d like to speak to a member of The Society of Will Writers about Advance Decisions and/or LPAs, please visit our Find a Member page.

 

Manisha Chauhan

Manisha joined the Technical Advice Team in July 2019 having previously worked as an Employment Solicitor in Warwickshire before relocating to Lincolnshire. Manisha provides advice on technical queries daily and works alongside Siobhan Smith also providing ongoing support on Sure Will Writer.

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