Many people assume that if you ever lost mental capacity, your spouse, partner or children will be legally entitled to make decisions for you, but that is not the case. In order to make your will (or that of a loved one) legally binding, you can do so in one of two ways. These are a Lasting Power of Attorney and Advance Decision to Refuse Treatment (previously known as a Living Will). Both documents provide certainty about who makes those decisions and ensure that your wishes are adhered to. But what are the differences between the two?
An Advance Decision permits you to write down any medical treatments that you do not want to have in the future, in case you later become unable to communicate decisions for yourself. Your wishes are then legally binding, provided certain requirements are met. If a medical professional ignores your Advance Decision, they could be taken to Court.
A Health and Welfare Lasting Power of Attorney is a separate legal document and, in terms of scope, can be much broader than an Advance Decision. It covers all health and personal welfare matters, including decisions about life-sustaining treatment if you choose to do so.
The difference between an Advance Decision and a Health and Welfare Lasting Power of Attorney is that, under the latter, it is your appointed Attorney who makes the decisions about life-sustaining treatment, taking into account your best interests. This may mean that the attorney will decide to authorise a medical professional to provide life-sustaining treatment.
However, if you have made a valid Advance Decision, your wishes must be respected by medical professionals, even if they do not agree with your wishes.
It is possible to have both an Advance Decision and a Health and Welfare Lasting Power of Attorney in place, but you must make sure that one does not conflict with the other. For advice on making your wishes legally binding, for either medical or financial matters, contact our Private Client and Wills & Probate team. Our solicitors offer practical legal advice that ensures your peace of mind for years to come.
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