In Private Client – that is to say, the area of law that deals with Wills, Powers of Attorney, Probate, etc - we are concerned with protecting you and ensuring your wishes are carried out. Often this means what you wish to happen after you die, but this can also mean what you want to happen should you still be alive but unable to make decisions about yourself.
If you were to become incapable of independent living, would you want to go into a care home or stay in your own house? Do you want to be kept alive as long as possible or would you prefer to go when you enter a persistent vegetative state? These are serious questions we hope to never have to answer, but if you wait too long then it may be strangers in social services or the medical profession who make these decisions rather than you or those who love you.
You can decide some things yourself in advance, by making what is called a ‘Living Will’ or an ‘Advance Decision’, which are different terms for the same thing. Specifically, these are used to refuse consent to medical treatment. Commonly, these are made when you have a diagnosis of a terminal, degenerative condition and want to stipulate that there are specific treatments you do not want, even if they would keep you alive longer. Alternatively, if you do not want specific treatments because of medical or ethical reasons, they can be included in an Advance Decision.
While they are powerful legal documents, there are several weaknesses in Advance Decisions. The two main ones are:
They have to be specific. General statements about not wanting life-sustaining treatment are less likely to be enforced. This is why they are more often made by people already diagnosed and aware of the potential treatments for their specific condition.
They only cover medical treatment. You cannot make Advance Decisions about care or welfare – including where or how you would want to live, what you want to eat and so on.
Health and Welfare Powers of Attorney
Since 2007 you have been able to create two types of Lasting Power of Attorney: Property & Finance and Health & Welfare. It is this second one – the Health & Welfare Power of Attorney – that is relevant to us today.
With this Power of Attorney, you choose one or more people who you trust absolutely, to make decisions for you if you lose the capacity to make those decisions yourself. These can be as serious as decisions about life-sustaining medical treatment, but unlike Advance Decisions can also include decisions about welfare – such as where or whether to move to a care home. It can also cover more mundane decisions, such as day-to-day medical treatment, diet, who visits you and so on.
If there is someone, or a couple of people, who you truly trust – Health & Welfare Powers of Attorney are a perfect mix of being flexible enough to accommodate many situations and powerful enough to make the decisions you want made. Remember that ‘next of kin’ means nothing in law – in order to ensure that it is those you love and trust who make decisions for you, you need to have a Lasting Power of Attorney put in place while you still have capacity.
If you are interested in a Health & Welfare Power of Attorney or an Advanced Decision, or if you have any questions, lawyers in our Private Client department will be happy to help.