Living Wills, Enduring Powers of Attorney and Lasting Powers of Attorney.
Page Contents
Living Wills or Advance Medical Directives
The Difference Between Living Wills and Lasting Power of Attorney (Personal and Welfare)
Links to Other Wessex LMCs Pages:
Information Governance – Office of Public Guardian requesting Access to a Patient’s Record
Advanced Decisions & Advance Care Planning
Enduring Power of Attorney
An Enduring Power of Attorney was an instrument used by a person to nominate someone to look after their affairs. Any Enduring Power of Attorney executed prior to 1st October 2007 will still be valid. No new Enduring Power of Attorneys can be created. They have been replaced by the Lasting Power of Attorney.
Use or cancel an enduring power of attorney – GOV.UK
General Power of Attorney
A General Power of Attorney (GPA) is a relatively straightforward authorisation for wide-ranging use or for specific periods or events. The need to create a GPA might arise, for example, if someone goes abroad and needs to entrust the management of business interests to their spouse. A General Power of Attorney can only be used to manage or deal with financial affairs.
Lasting Power of Attorney
The Mental Capacity Act 2005 (‘the Act’) introduced the Lasting Power of Attorney, a legal document which allows someone to make decisions about health care or finances at a time when a person lacks the mental capacity to make those decisions for themselves. (Mental Capacity)
There are two very different forms of Lasting Power of Attorneys (LPAs) that can be made.
- One deals with financial affairs – LPA (Property and Affairs) abbreviated to LPA (PA) which replaces the existing Enduring Power of Attorney (EPA)
- The other form of Lasting Power of Attorney deals with personal welfare issues – LPA (Personal Welfare), abbreviated to LPA (PW).
Gov.uk website has further information.
A person can make one form of Lasting Power of Attorney without making the other. The person making the LPA is referred to as the “donor”.
An LPA(PW) enables the Donor to appoint an Attorney to make decisions about social care issues and medical treatment, including life-sustaining treatment.
There may be different Attorneys for a person’s LPA(PW) and their LPA(PA).
Many of the elements of the LPA(PW) are similar to the LPA(PA). A valid LPA must include a certificate completed by an independent third party (the certificate provider), which confirms that, in their opinion, the donor understands the scope and purpose of the LPA; the donor was not put under undue pressure to make the LPA; and that the certificate provider is not aware of anything else that would prevent the LPA being made. As a doctor, you may be asked to act as the certificate provider.
Whilst an LPA(PW) must also be registered before it is used, a crucial difference between an LPA(PA) and an LPA(PW) is that an LPA(PW) can only be used when the Donor lacks mental capacity to make their own decisions about personal welfare. The Act requires that an individual is given every reasonable opportunity to make a decision themselves before they are considered to lack capacity.
If you are unclear about the meaning of an LPA, the Court of Protection will be able to clarify it. The Court can also extend the powers of the attorney when the donor has lost capacity.
Gov.uk website has further information.
Living Wills or Advance Medical Directives
A Living Will is an advance declaration of wishes about medical treatments which could be given for any future illness, where mental capacity has been lost.
Living Wills are valid in England & Wales and Scotland, but in England & Wales they are also known as ‘Advance (Medical) Decisions’.
With a Living Will, only refusals of medical treatments or procedures will be binding on medical staff. Requests for special treatments (other than pain management and basic nursing) may have persuasive force, but doctors do not have to follow instructions.
With a Living Will, someone can be appointed whom doctors may consult on health care matters; this person is referred to as a Health Care Proxy.
The Difference Between Living Wills and Lasting Power of Attorney (Personal and Welfare)
In terms of being able to state what wishes are in relation to medical treatment should mental capacity be lost, both documents are similarly effective. However, a Living Will is lodged with a GP. An LPA(PW) actually gives someone the authority to advocate someone’s wishes on their behalf.
Points to note
- If a Living Will is made after an LPA (PW) and the Living Will covers the same treatment as the LPA HW, the Attorney of the LPA (PW) cannot consent on someone’s behalf to treatment specified in the Living Will
- An LPA (PW) created after a Living Will that covers the same treatment as the Living Will will cause the Living Will to be invalid