Back
If you were in hospital and you were to lose mental capacity and could no longer communicate how would you ensure that your wishes were carried out? There are a number of documents that you can set up during your lifetime (whilst you have capacity) to ensure that your wishes are carried out. We will look at what these documents do and how they differ.
Health & Welfare Lasting Power of Attorney (LPA)
A health and welfare LPA allows you to appoint a person/people to make decisions on your behalf to act if you were to lose mental capacity. The decisions can cover where you would live, what medical care you would receive and your daily routine, such as what you would eat and wear. There is also a section specifically for life sustaining treatment, this allows you to state whether you would like your attorneys to give or refuse consent to life sustaining treatment.
It is possible to include preferences and instructions for your attorneys to follow in the document. We usually recommend keeping these blank to provide your attorneys maximum flexibility to make decisions. We would instead suggest letting your attorneys be guided by a side letter of wishes that accompanies the document.
This document is legally binding and once registered it cannot be amended, therefore you should seek legal advice to ensure that the document will work as you intend. Especially when it comes to the appointment of more than one attorney and when replacement attorneys should step in.
Advance Decision/Advance Directive/Living Will
These are all names for one type of document which allows you to make a decision to refuse a specific type of treatment in the event that you later become unable to make or communicate those decisions yourself. It is also possible to refuse life sustaining treatment such as ventilation, CPR or antibiotics.
This document provides your health and social care team clinical and legal instructions about your treatment choices.
An advance decision is a legally binding document and can either be prepared by legal professionals or with the assistance of a clinician. If in your advance decision you refuse life sustaining treatment this document has to be signed in the presence of a witness, otherwise if it just relates to medical treatment it just needs to be signed by you.
ReSPECT
ReSPECT stands for Recommended Summary Plan for Emergency Care and Treatment. The plan is created through conversations between a person and the health professionals who are involved with their care.
The process is intended to balance both patient preferences and clinical judgement. The plan should stay with the person and be available immediately to assist health and care professionals faced with making immediate decisions in an emergency. ReSPECT can be used across a range of health and care settings, including at home, an ambulance, a care home, a hospice or a hospital.
Unlike the other two, this form is not legally binding and is merely an outline of your preferences in an emergency.
All three of the above documents only take effect when you have lost capacity and cannot make decisions for yourself, whilst you have capacity you should make and be supported to make the decisions yourself. If you were to never lose capacity, the documents would never be used.
The main differences:
The health & welfare LPA allows someone to make these decisions for you. You need to ensure that it is someone you trust who knows you well and knows what you would want to happen in such circumstances.
A health and welfare LPA covers a wider variety of decisions, it allows your attorneys to make decisions about where you live, who would visit you and your daily routine.
There is also a greater range of flexibility as you can easily update your attorneys on your choice of medical treatments whilst you have capacity and your attorneys are able to make decisions about your treatment based on the situation and medical practices at the time.
An advance decision allows you to state what treatments you wish to receive without having to rely on someone else to make the decisions for you. However, these decisions are limited to the refusal of medical treatments.
Medical professions must follow a valid advance decision regardless of the outcome, whereas an attorney must always act in your best interest.
As your treatment wishes are clearly defined, due to medical science advances you may need to regularly check your advance decision to ensure that your wishes reflect these developments.
If a health and welfare LPA and an advance decision conflict, the document made later in time generally takes precedence.
A ReSPECT form, unlike the other forms, would only be prepared with a medical professional.
Like the advanced decision, this document only covers medical treatment and specifically what would happen in an emergency. These documents were created in 2016 but have been more common since COVID-19.
If you are interested in preparing a health and welfare LPA or an advanced decision or would like more information, please contact us at Lanyon Bowdler for an appointment.
"*" indicates required fields