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Amanda Attrell

Associate FCILEx - Head of Later Life - Brighton & Hove

Living Wills and Health and Welfare Lasting Power of Attorney

If you are unable to make a decision about your own health and welfare, then who does?

When planning for Later Life, most people focus on the financial considerations: –

  • Making a Will
  • Making a Lasting Power of Attorney for Property and Finances
  • Paying for Care

However, few people consider how a decision about their health and welfare matters are made at a time when they are unable to make that decision for themselves.

What might a health and welfare decision cover?

  • Where you live
  • What medical treatment you receive (including the acceptance or refusal of life sustaining treatment)
  • Who you socialise with and what activities you take part in
  • What you eat and wear

We make our own health and welfare decisions on a daily basis without a second thought. But what happens if you are unable to make those decisions for yourself?

Why might I be unable to make a decision myself?

There are a range of reasons why you might not be able to make or communicate your own decision including:

  • If you are unconscious following an accident or illness
  • If you are unable to communicate your decision for any reason, for example following a serious stroke
  • If it is considered that you do not have the mental capacity to make a decisions, for example if you have the late stages of dementia

Who makes the decision if I can’t make it for myself?

This depends on whether you have put any arrangements in place to specify your wishes. There are two key documents that you can create

  • An Advance Decision (sometimes known as an Advance Directive or a Living Will)
  • A Lasting Power of Attorney for Health and Welfare Decisions.

Advance Decisions (Living Wills)

An Advance Decision is a document that is legally binding in England and Wales, provided the document meets certain requirements. It is a written statement that sets out what medical treatment you do and do not want to have in the future and will only be referred to if you cannot make or communicate a decision for yourself. This might include decisions such as whether you would wish to be resuscitated if your heart stops or would want to be put on a ventilator if you were unable to breathe on your own.

A healthcare professional, such as a doctor in an A&E department of a hospital, will take practical steps to find out whether someone who has been admitted to hospital has made an Advance Decision. It is therefore important that

  • you ask your GP to place a copy of your Advance Decision with your medical records and
  • family and friends are aware that you have made one.

You may even wish to carry a copy with you at all times or a note confirming that you have made an Advance Decision.

It is advisable to review and update the Advance Decision regularly (e.g. every two years or if you receive a new medical diagnosis) as a healthcare professional can be more confident that the wishes in a recent document are still valid. An Advance Decision made a long time ago is not invalid but it could raise doubts as to whether the wishes contained in it are still valid. If considered invalid, a healthcare professional may to choose not to follow it.

Health and Welfare Lasting Power of Attorney (LPA)

A Health and Welfare LPA gives you the opportunity to appoint other people to make a health or welfare decision on your behalf but only if you are unable to make a decision for yourself. As well as agreeing to or refusing medical treatment (including life sustaining treatment if you wish) this might include other welfare decisions, such as where you live and who you socialise with.

Where you appoint an attorney to make decisions for you, that attorney should always make decisions in your best interests. A best interest decision will include considering information that you have previously communicated about what you would want in certain situations.

A Health and Welfare LPA must be registered with the Office of the Public Guardian to be valid and this process will take at least 8-10 weeks so it is preferable to have it prepared and registered before it is likely to be needed so that it can be used in an emergency situation.

Can I have both a Living Will and a Health and Welfare Lasting Power of Attorney?

It is possible to have both documents but the date order that you make the documents in could cause portions of the older document to become invalid.

What happens if I don’t have either a Living Will and a Health and Welfare Lasting Power of Attorney?

The majority of us will not have put either an Advance Decision or a Health and Welfare LPA in place yet. In this scenario, best interest decisions would need to be made for us.

So if a person were involved in a car accident which left them unconscious, who would make the decisions about the medical treatment that they receive? Clearly in an emergency medical situation such as this urgent decisions will have to be made and immediate action taken in that person’s best interests. If an Advance Decision was found and considered valid then the wishes set out in that document would be followed.

Once the emergency situation had passed, let’s say that person was stable but still unconscious and a decision had to made as to whether a particular type of surgery were undertaken, who would make that decision? This would usually fall to the healthcare professionals treating you and in making a best interests decision for you they would usually consult with family and friends. In specific cases where there is no-one to consult an Independent Mental Capacity Advocate (IMCA) would be appointed to represent the incapable person.

Problems can of course arise if there is a disagreement about what treatment should be given and this could result in an application having to be made to the Court of Protection for a decision to be made, which can be costly and time consuming.

Even when medical professionals and the family are in agreement, certain steps may not be possible without the approval of the Court of Protection. This was highlighted in a recent Supreme Court case where a banker (known as Mr Y) in his 50s suffered a heart attack, resulting in severe brain damage. His family and doctors agreed that there was no chance of recovery and agreed that it would be in his best interests to allow him to die by removing his feeding tube (providing him with food and water which was the only thing keeping him alive). Since 1993, it has not been possible to do this without a Court Application, which is both costly and time consuming. The NHS Trust therefore used this instance to ask the Court to remove the requirement to get Court Approval. The Judge agreed but the Official Solicitor (acting for Mr Y) appealed the decision.

Mr Y died before the appeal hearing but the case continued and a ruling was made stating that as long as medical professionals and relatives are in agreement, a person who is minimally conscious or in a vegetative state can now withdraw not only treatment but also food and water.

For more information on Wills and Living Wills contact Amanda Attrell, Head of Later Life in Brighton & Hove – e. amandaattrell@rixandkay.co.uk

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