Lasting Power of Attorney or Advance Decision?

There has been much comment recently about the relative merits of having a fully registered Lasting Power of Attorney – Health and Welfare (“LPA-H&W”) compared to an Advance Decision which arguably gives greater flexibility to deal with changing circumstances.

Since September 2007 it has not been possible to execute an Enduring Power of Attorney.  The latter was based on the simple General Power of Attorney under the Powers of Attorney Act 1971 s.10 but unlike that document it survived the incapacity of the donor (but not death as people sometimes think is the case).

Many clients find the LPA-H&W long winded and cumbersome. Before LPA-H&W was introduced, it was common to execute an Advance Decision at the same time as a client would draft a new Will. These documents were known by different names – such as Living Will – but had the same intention. A statutory framework was overlaid by the Mental Capacity Act 2005 which supplemented the previous common law position. S.24-26 of this Act came into force on 1 October 2007.

Although there have been a number of very high profile cases of people with extremely serious diseases to refuse life saving treatment there has been a remarkable lack of reported cases about those with lesser illnesses. This may simply indicate that the honouring of Advance Decisions where the donor is still capable of confirming his or her consent to the proposed treatment (or lack of it) can be routinely handled by the medical profession.

In the opinion of the writer, the Advance Decision gives greater flexibility because the medical condition being treated can be considered by the doctor alongside the expression of wishes by the patient. The flexibility this gives is to be compared with the rather more rigid provisions of the LPA-H&W.

However, the benefit of the LPA-H&W is that it does enshrine the wishes of the patient in a document that is registered with the Office of the Public Guardian and that document survives the incapacity of the patient.

Now, more than 5 years after the Mental Capacity Act came into effect, there is still a debate to be had as to the relative merits of the LPA-H&W and the Advance Decision. At the end of the day it is largely individual choice after having weighed up the relative merits of each option. Many clients decide they do not want either option and simply leave it to the medical profession to decide in consultation with their families. For some people that will always be the best choice.

For further information please contact our Private Client team.

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