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Living Will vs Lasting Power of Attorney

Our People - Chryso Loizides
19 June, 2023

When it comes to making important decisions about healthcare and personal matters, individuals have legal tools at their disposal to ensure their wishes are honoured. Two commonly used instruments are the Living Will and the Lasting Power of Attorney. Although both serve similar purposes, they differ in significant ways. This article aims to shed light on the distinctions between these two legal documents, providing clarity on their respective roles and functions.

What is a Living Will?

A Living Will, also known as an advance decision or healthcare directive, is a legally binding document that outlines an individual’s preferences regarding medical treatments and end-of-life care.

It will ensure that a person’s wishes for medical intervention or non-intervention are respected when they are no longer able to communicate or make decisions due to incapacitation.

A living will cannot include details of how your estate should be distributed on death. It typically covers decisions related to life-sustaining treatments, resuscitation, palliative care, organ donation, and the administration of pain medication. A Living Will must be prepared and signed while the person is of sound mind and capable of making decisions. It becomes effective when the individual is unable to make medical decisions themselves.

What is a Lasting Power of Attorney (LPA)?

A Lasting Power of Attorney (LPA) is a legal document that grants another person (known as an attorney) the authority to make decisions on behalf of the individual (known as the donor) in matters relating to health and welfare or property and financial affairs. An LPA ensures that a trusted person can make decisions in the best interests of the individual if they become mentally or physically incapable of doing so themselves.

There are two types of LPA: Health and Welfare LPA, which covers decisions about medical treatment, care, and living arrangements, and Property and Financial Affairs LPA, which covers financial matters. An LPA must be executed while the donor is mentally capable. It requires registration with the appropriate legal authorities before it can be used.

What are the Key Differences between a Living Will and an LPA?

1. Decision-Making Authority

A Living Will allows you to express your specific wishes regarding medical treatments and end-of-life care. It serves as a guide for healthcare professionals when you are unable to communicate or make decisions. A living will cannot nominate someone to make decisions on your behalf.

A Lasting Power of Attorney grants decision-making authority to a chosen attorney who can make decisions on your behalf. The attorney has the legal power to act in your best interests, considering both your expressed preferences and the current circumstances.

2. Timing

Living Wills and a Health and Welfare LPAs become effective only when you are unable to make decisions or communicate your wishes due to incapacitation.

3. Flexibility

A Living Will provides specific instructions for medical treatments and end-of-life care. It allows you to outline your preferences and ensures that they are followed. However, it may not cover all possible scenarios or adapt to changing circumstances.

An LPA offers greater flexibility. Your chosen attorney can make decisions based on your best interests, taking into account your expressed preferences as well as the current circumstances. This flexibility allows the attorney to adapt to unforeseen situations and make decisions beyond what is specifically outlined in a Living Will.

Do I need a Living Will or a Lasting Power of Attorney?

In practice, it is rare to have both a health and welfare LPA and a living will. This is because the document most recently created (or registered) will take precedence over the previous document in so far as it covers decisions regarding your medical and life-sustaining treatment.

When choosing a Living Will or an LPA, it is important to consider that a living will only applies to the circumstances and types of medical treatment that you include in the document.

Therefore, if you suffer from a condition or find yourself in a situation not specifically covered in your living will, your treating doctor will be responsible for making the relevant decisions on your behalf. If any part of your living will is open to interpretation, which occurs very frequently as it is difficult to cover every eventuality, the living will may be unenforceable.

Conversely, an LPA allows you to include what medical treatment you want in specific circumstances, and in addition grants decision-making authority to a trusted person (the attorney) to make decisions on your behalf in the event unforeseen circumstances arise which are not covered in the document. An LPA also allows you to advance decisions in regards to other areas of your welfare which you may wish to decide upon, such as where you live, what you wear and your general welfare needs.

It is advisable to consult with legal professionals who specialise in estate planning and capacity law to understand the legal requirements and implications of each document. They can guide you in determining the most suitable approach based on your circumstances and help you prepare these important documents according to your preferences.

For more information about creating with a Living Will or a Lasting Powers of Attorney, please contact our Wills Solicitors or Power of Attorney Solicitors for a free consultation on 020 8492 2290 or email us at sols@gnlaw.co.uk.

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