Understanding the Differences between an Advance Decision (Living Will) and a Health and Welfare Power of Attorney

An Advance Decision, often referred to as a Living Will, is a decision you are able to make in advance, to refuse a specific type of treatment at some time in the future. The treatment you decide to refuse must be set out in the Advance Decision. It can be a very important document setting out your wishes about refusing treatment if you are not in a position to make or communicate those decisions yourself.

The Advance Decision can include decisions about refusing life sustaining treatment, for instance being resuscitated, which is treatment that could potentially keep you alive. For the Advance Decision to be effective, it needs to be written down and signed by you in the presence of a witness. An Advance Decision is legally binding provided that it complies with the Mental Capacity Act, is valid, and applies to the situation you are in at the time.

It is prudent to provide copies of the Advance Decision to your carers and other professionals, as well as your close family members.

A Health and Welfare Power of Attorney is very different to an Advance Decision. It is a document which basically enables you to choose who can make personal decisions on your behalf, in the event that you become unable to make those decisions yourself. A Health and Welfare Power of Attorney is much wider in scope than an Advance Decision or Living Will. With a Health and Welfare Power of Attorney, the Attorney is able to make decisions about your daily routine. For instance, your Attorney can decide what you eat and where. He or she can even decide who visits you and can obtain access to your medical records. Your Attorney is able to make decisions regarding your medical care and attention.

With a Health and Welfare Lasting Power of Attorney, you have the option to delegate to your Attorney decisions regarding whether to consent to or refuse life sustaining treatment.

It is most advisable to consult with a solicitor to understand your rights and to ensure that you take the appropriate action to ensure that should you become mental incapable, your own wishes regarding Health and Welfare issues are properly taken into consideration in the event that you are no longer in a position to make those decisions yourself.

To discuss making an Advance Decision, a Power of Attorney or any other private client matter please call us on 0113 320 5000.

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