What is the difference between a Lasting Power of Attorney and a Living Will?

25/03/2021

Legal Document FAQs - Lasting Powers of Attorney and Living Wills

Whilst most of us understand the importance of having a Will in place, that sets out how your estate will be distributed after you die, there are several other key documents that you should consider having prepared that will protect you and your family and safeguard your affairs for the future whilst you are still alive if, for example, you lose mental capacity and the ability to make decisions for yourself. You can read our previous article: What is the meaning of Mental Capacity here.

Planning for the future or thinking about what you should do if you or a loved one loses mental capacity can seem daunting and will likely include some difficult decisions to think about, however, it is important to make sure that if the time comes when you are unable to make decisions for yourself, choices regarding health and welfare and property and finances are followed through in accordance with your wishes. Postponing these or not having them in place until it is too late can cause unnecessary stress, heartache and expense for family and loved ones.

In this article, we look at the difference between a Lasting Power of Attorney and a Living will and why you should consider putting these legal documents in place.

A ‘Living Will’ or Advance Decision

Living wills, sometimes known as an advance decision, advance directive or advance medical directive, would be used if you are unable to communicate your wishes due to situations where you become incapacitated, mentally incompetent, or unable to communicate. It can also be used to set out your preferences for other medical treatments or decisions, such as pain management or organ donation.

A living will can be made by anyone over the age of 18 that has the mental capacity to make their own decisions about their choice of healthcare.

An advance decision to refuse treatment should:

  • Be clear about the circumstances under which you would not want specific treatment
  • Be clear about specific treatment or refusal of specific treatment, even if this could lead to your death

An advance decision cannot:

  • Request a certain treatment
  • Ask for your life to be ended

Lasting Power of Attorney

A Lasting Power of Attorney (LPA) is a legal document that effectively gives someone else the right to act for you and make decisions on your behalf if you’re unable to in the future. 

There are two types of Lasting Power of Attorney; a health and welfare LPA and a property and affairs LPA. A health and welfare Lasting Power of Attorney allows you to elect a person - your attorney - who can make decisions about your personal welfare, such as your day-to-day care, the medical treatment you receive or where you live. A property and affairs Lasting Power of Attorney covers decisions about the material things in your life, such as paying your bills, collecting your income and benefits, conducting your financial affairs or even selling your house.

What is the difference between a Living Will and a Lasting Power of Attorney?

A ‘Living Will’ or Advance Decision can sometimes be seen as an alternative to a Lasting Power of Attorney for Health & Welfare. However, there are a few differences you should be aware of. 

Whilst a ‘Living Will’ or Advance Decision is a statement of your refusal to specific treatments if you lose mental capacity before or at the time the treatment is being considered, it can only detail your instructions as to medical treatment and cannot be used as consent to certain treatments only refusal. 

A Health and Welfare Lasting Power of Attorney does however give your attorney the authority to make decisions about all your health and welfare related matters, along with any treatment you need to receive and the right to carry out your wishes regarding treatment you don’t want to receive. Your attorney will be able to make the decisions for you at a time you no longer have the mental capacity to make the choices for yourself. This could include decisions regarding healthcare requirements, decisions on day-to-day matters such as diet or dressing, or deciding on the point at which you move into residential care, along with any decisions on medical treatment required. 

With an LPA for Health & Welfare, your attorney will also have the authority to make decisions regarding life-sustaining treatments, whereas a ‘Living Will’ cannot. You can also include guidance notes in your LPA, and restrictions and conditions on your attorneys regarding the decisions on your treatment. 

Should I have both documents? 

The order in which these documents are drafted will affect the legality of each of these, as the most recently signed document will take precedence.

If your Lasting Power of Attorney is signed after the Living Will, then the LPA will overrule the Living Will or make it invalid, if the LPA permits the appointed attorney to make the same decisions about life-sustaining treatment. Although, it is possible to include directive wording in the LPA to ensure this does not happen. 

Likewise, if you have a Living Will that was signed after an LPA has been registered with the Office of the Public Guardian, the Living Will would override the content of the LPA, in so far as it relates to allowing your attorneys to make decisions regarding life-sustaining treatment. 

It is therefore vital to ensure that there are no conflicting wishes stated in the two documents, should you wish to have both documents in place. 

Living Will and Lasting Power of Attorney Solicitors

This area of law can often be complex and unfortunately, it is not uncommon for disputes to arise regarding the handling of a loved one’s affairs when the loss of capacity occurs.

Discussing your decisions with any relevant medical professionals or your family and friends is a good idea, but these documents must be well-drafted by an experienced professional to be effective as the rules regarding these can be complicated, especially when a Living Will is in conjunction with other legal documents such as a Lasting Power Of Attorney.  

At Russell & Russell Solicitors, our specialist private client team can advise on all matters concerning Lasting Powers of Attorney and Living Wills. We can also provide legal advice and guidance on the court of protection and have the knowledge and expertise to provide expert advice on the Mental Capacity Act 2005. We can advise on all stages of the assessment process, make applications to the Court of Protection or provide guidance on the appropriate solution should disputes arise.

How can we help?