ADVANCE DECISION VERSUS HEALTH ATTORNEY

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When would you consider an Advance Decision alongside using your Health & Care Power of Attorney?  Your LPA is for important health decisions so what is the difference between the two? 

When consulting with me, or any legal professional, there are important points a client is asked to consider, in fact, very important points to consider. You will be asked what has led you to this decision and who else you have discussed this with, amongst other things. This is then recorded and kept as a separate document.  This can be kept alongside your LPA and Advance Decision and all important documents can be kept in your Advance Care Plan folder. If you are wondering why keeping this note is important, it is to support your decision in the event it might be challenged or questioned. Of course, you can take the view “that’s not going to happen to me”, like an illness, but the law exists largely because it absolutely does happen to people. So, the law can and does become complex especially when it comes to protecting your right to make choices for yourself.

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Do you want your Advance Decision instructions to be absolute so that no one can change your wishes? Do you wish to avoid your attorneys having a say in your healthcare decision to deny life sustaining treatment? If so, do not make your Advance Decision first (or date it before) your Lasting Power of Attorney documents. An LPA made afterwards will override the AD as it is the more recent document. It is wise to say on your LPA form that you have an AD that you want your Attorneys to take into account. A copy of the AD must then be included with the LPA when registered. You can make an Advance Statement which is not legally binding but can help your attorney understand your wishes and preferences and this should go with an Advance Directive anyway.

If you do not have an Advance Decision and/or you do not check the box on the LPA form, your Attorney will not be allowed to make this decision to refuse life sustaining treatment on your behalf. You must also realise that this is an enormous protection for you. Attorneys are given powers as if they were you legally. The legal system is crammed with Attorney abuse.

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Should I leave all my healthcare decisions to my health attorney?

If you feel strongly about any decision, it is best to say so and record it.  There is a difference between recording wishes and giving instructions in your LPA.  For an instruction use the word "must" clearly and ensure you are not giving conflicting instructins or information or the OPG may not support your LPA.  If you do not wish to be resuscitated in certain instances and wish to refuse life sustaining treatment, then this must be written down, signed and witnessed as a deed to be valid and this can be kept in your Advance Care Plan folder.

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You can give your LPA the power to refuse life sustaining treatment on your behalf if you wish, by checking a certain box on the form. So, it is important to consider how the AD and LPA will work together. Your legal advisor will take you through certain questions, considerations and actions needed, that ought to be recorded with your AD, such as in the Advance Statement.

It is wise to ensure that you do not leave such important decisions to someone else if you can avoid it. Not only can this cause an immense amount of upset and stress at the time a decision might need to be made, it also leaves it open for a decision you would not want and the potential for a challenge.

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If you make an Advance Decision, you should not give your attorney power to refuse the same treatment.

All in all, it best to leave as little as possible to chance and be as clear as you can about your wishes and have them recorded properly, with the documents completed correctly and in the right order.

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It is wise to store all important healthcare documents in a central place. Put them together in a fully prepared Advance Care Plan which you can take with you into any hospital or care situation. You are wise to notify your Attorney of its existence and if you think it helpful, the executor of your Will. A healthcare professional will be very pleased to have access to all your healthcare wishes and directions, records of important people and the legal documents to support that.

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There are many services arising where you can do certain documents yourself.  I am preparing an article now entitled "Top 6 reasons why to use a Legal Professional to prepare your Lasting Power of Attorney" because of common problems surrounding when you do not.   Doing things yourself is great but it does not absolve you of the responsibility to have researched and considered your current position and of course considered those situations that cannot be foreseen in the context of the law surrounding that, and that you have prepared your wishes and documents accordingly.  For example, an Advance Statement should be with your Advance Directive which outlines the various actions, steps discussions and reasons for your decision.  It is misleading to let you assume that an unconsidered LPA or AD at a basic cheap cost is all you are ever going to need, ie that no legal advice or knowledge is required.  You will likely find that the consultation costs are to be added or the seller is absolving themselves of the obligation to give legal advice and that you purchase the document at your own risk, as all legal professionals providing this service are otherwise obliged by regulation to provide you with the correct advice suited to your situation.  This is something to understand when going it alone with any legal document.

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Other articles will follow soon on the extensive protections and directions that you can include in your Health LPA and give to an Attorney in order to protect you when your life is in their hands. See Isobel’s story on my website as an illustration.

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FINALLY ...

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Choose your attorney with great care and consider whether you should leave decisions regarding life sustaining treatment to an attorney or whether you would like to leave your own directions for an attorney to follow.  In my opinion you must assume the worst of a potential attorney in order to pick the best attorney and write the best LPA.