Advanced Decision, Living Will, or Lasting Power of Attorney: which one is right for you?

Before we explain the differences between Lasting Power of Attorney and Advance Decisions, it is important to highlight that there is a third option – to do nothing. If you do not currently have any documentation in place to safeguard yourself, this is the option you are currently taking.

If you lose capacity without a Lasting Power of Attorney in place, things will become difficult. Relatives and social services will be left simply guessing what you would want.

The Court of Protection and the Office for the Public Guardian will have to appoint a deputy to manage your finances, and social services or the court will make decisions about your medical treatment, where you live, your finances, and even day-to-day decisions like what you would like to eat, or whether you would want to buy your child or grandchild a Christmas present.

If your loved ones want to make decisions about your welfare and your finances, but there is no documentation in place, one of them will need to make an application to the Court of Protection. The process is lengthy, includes a detailed medical report and statement of your financial and family position. The application process takes 6 months or more and all the while you are unable to manage affairs yourself. The situation can become chaotic

Luckily, you can avoid the chaos by creating documentation ahead of time that explains what you would want if you lost capacity, and who you would like to make decisions.

As Martin Lewis of Money Saving Expert has said, ‘It’s worth remembering people can lose their faculties very quickly. And when their family are already having to come to terms and deal with that – without an LPA, the only way they can take charge of your finances is via the Court of Protection which people often say is a nightmare…the gold standard way to do an LPA is to get a solicitor to draft one for you’.

A Lasting Power of Attorney allows you to choose who you want to manage your affairs if you become unable to. ‘Managing affairs’ can include everything from simple actions such as accessing bank accounts to pay your bills, to making important decisions about where you live and what care you should be given.

This person, known as the attorney, can be a friend, relative or a professional such as a Solicitor. There are two types of LPA: Health & Welfare and Property & Finance.

A Lasting Power of Attorney for Health & Welfare allows you to choose a person to make decisions about your personal healthcare, welfare, and medical treatment, if you became unable to do so yourself.

The LPA can also cover elements such as where you would like to live, how you would like to spend your time, and even aspects such as your diet. It gives you the power to make these important decisions now for your future self and can provide a form of protection in case you were to ever lose your capacity.

A Lasting Power of Attorney for property and finance allows the person appointed to look after and manage your finances and property, such as paying bills ensuring your investments are being properly cared for and your property being maintained.

Without a Lasting Power of Attorney these matters will be dealt with by a court appointed deputy or social services. Creating an LPA gives you peace of mind, should the worst happen, that your affairs will be in the hands of those you trust.

Attorneys are strictly monitored by the Office of the Public Guardian and are required by law to act in the best interests of the person who has given them the power.

Even if you lost your capacity but had a Lasting Power of Attorney for Health & Welfare in place, your attorney would still have to consider whether you had capacity to make specific decisions. Only after having considered this, could the attorney make a decision on your behalf.

You choose how much power is given to the attorney. You might decide that you want an attorney to make welfare decisions about your care, but not make important medical decisions. Our expert Lasting Power of Attorney solicitors will be able to make sure your wishes are expressed properly and clearly in the LPA document.

An Advance Decision, which can also be known as a Living Will, is a document you can make now to refuse a specific medical treatment in the future, including life-sustaining treatments like CPR, antibiotics, being put on a ventilator to breathe, or receiving foods and/or fluids through a drip.

Unlike a Lasting Power of Attorney, an Advance Decision cannot give directions for your overall day-to-day care or give your loved ones the ability to make decisions about your welfare. An Advance Decision can only set out treatment you wish to refuse, not treatment you would like to have.

You can have both an Advance Decision and a Lasting Power of Attorney. The attorney will only be able to override Advance Decision if:

1. The Lasting Power was made after the Advance Decision, and
2. if the LPA specifically gives the attorney the power to override the Advance Decision, if they think it in your best interests.

If you do have an Advance Decision and a Lasting Power of Attorney, it is important to let your attorney know about the Advance Decision and give them a copy of the document.

It is important to speak to us to ensure that your Lasting Power of Attorney fulfils your exact wishes. As an LPA will only come into use if you are unable to make decisions, it is vital to have this conversation with a solicitor while you still have capacity.

We have noticed an increase in mistakes made by people who create their own LPAs online, even when they have done so under the guidance of a financial adviser. These mistakes include forgetting to put in safeguards and failing to set up replacement attorneys who could act if your main attorney were to die, become ill, or be otherwise unable to act for you.

Pitfalls and problems can be avoided by using a solicitor experienced in creating and advising upon LPAs, rather than relying on advice from a non-legal adviser or creating a D-I-Y document at home.