LIVING WILLS

Living Wills, Health and Welfare LPAs and Advance Statements in Stamford

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Living Wills by Town & Country Law Stamford

A Living Will, formally referred to as an Advance Decision under the Mental Capacity Act 2005, is a legal document that allows individuals to refuse specific medical treatments in the future, should they lack the capacity to make those decisions at that time. While the term “Living Will” is more colloquial, it is widely recognized by clients and will be used throughout this briefing note. Clients often inquire whether they should opt for a Living Will, a Health and Welfare Lasting Power of Attorney (LPA), or both.

A Living Will is available to anyone over the age of 18 with mental capacity and provides a legally binding way to refuse specified treatments. Treatments detailed within the Living Will cannot legally be administered if the document is valid. However, there are several key points that must be considered and discussed with clients when preparing a Living Will:

Specificity is crucial: The Living Will must clearly state the specific treatments or circumstances in which treatments are to be refused. Ambiguity may render the document invalid.
Limitations apply: A Living Will cannot include refusals for basic care (e.g., food and drink), nor can it include requests for euthanasia.
Refusal vs. demand: While a Living Will allows an individual to refuse treatment, it cannot demand specific treatments. Healthcare professionals retain the right to decline treatments they deem clinically unnecessary or inappropriate.
Mental Health Act restrictions: Treatments for mental health disorders cannot be refused via a Living Will if the individual is detained under the Mental Health Act 1983.

Clients often ask about the differences between a Living Will and a Health and Welfare LPA, especially given the price difference. While some clients may only need one or the other, others may benefit from having both. Each option has unique benefits: a Living Will provides specific refusals for treatment, while an LPA allows an appointed individual to make broader health and welfare decisions on the client’s behalf. Determining the most suitable approach depends on the client’s personal circumstances and future planning needs.

HEALTH AND WELFARE LPA

A Health and Welfare Lasting Power of Attorney (LPA) enables the donor to grant their attorneys the authority to make decisions regarding life-sustaining treatment on their behalf.
Attorneys are legally required to act in the donor’s best interests and must adhere to the guidelines outlined in Section 4 of the Mental Capacity Act 2005.
Creating an LPA involves meeting strict legal requirements, and it must be registered with the Office of the Public Guardian to become valid. If the original document is misplaced, additional certified copies can be obtained.
It is important to note that a Health and Welfare LPA does not permit or legitimise euthanasia.

LIVING WILL

A Living Will must clearly outline specific treatments or circumstances it applies to and will only address these particular issues.
The principle of acting in the person’s best interests does not apply to a valid and applicable Living Will. Once it is confirmed as such, it must be followed, even if a medical professional believes it is not in the person’s best interests.
The process of creating a Living Will is relatively straightforward and follows formalities similar to those of drafting a standard Will. However, this simplicity can sometimes lead to uncertainty about whether a Living Will exists or is enforceable.
It is important to emphasize that a Living Will does not authorize or legitimize euthanasia.

Advance Statements
The Mental Capacity Act 2005 (MCA 2005) allows individuals to create an Advance Statement, which differs from both a Living Will and a Lasting Power of Attorney (LPA). An Advance Statement enables a person with mental capacity to clearly outline their preferences regarding future care and treatment.

This document is non-binding, meaning it does not legally have to be followed. However, attorneys under a Health and Welfare LPA are required to take the wishes expressed in an Advance Statement into account when making decisions in the person’s best interests, as outlined in Section 4(6) of the MCA 2005.

It’s important to note that clients can include their wishes and instructions within their LPA, but if not done correctly, this could restrict their attorneys from acting in line with their true preferences. Once an LPA is registered, making changes can be challenging. An Advance Statement, however, can be used alongside an LPA and, as long as the client retains capacity, can be amended, updated, or revoked if circumstances change.

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