LPAsAdvance Decisions and Health and Welfare LPAs: How Do They Interact?

30 September 2022by Chris Rattigan-Smith

An advance decision is a decision made by a person refusing consent to the giving or continuing of certain medical treatments. This statement is made whilst they have mental capacity, in anticipation of a time in the future when they no longer have capacity.

Advance decisions are also commonly referred to as an advance decision to refuse treatment, a living will or an advance directive.

As they deal with medical treatment after a person has lost capacity, there is overlap between them and a health and welfare lasting power of attorney (LPA). The exact relationship between the two documents depends on which document was created first.

LPA created first

If an advance decision is created after a health and welfare LPA, attorneys cannot consent to any treatment refused in the advance directive. Being the later document, the advance decision will overrule authority granted to the attorneys over those specific decisions.

Advance Decision created first

If a health and welfare LPA is created after an advance decision, the creation of the LPA will make the advance decision invalid if the LPA gives the attorneys the authority to make decisions about the same treatment.

If the advance decision should be considered and not overruled by the LPA, the Office of the Public Guardian (OPG) advise in their LP12 guide that reference to the advance decision should be made in the instructions in section 7 of the LPA. A copy of the advance decision should also be included when the LPA is sent to the OPG for registration.

Care should be taken in these circumstances to ensure any instructions or preferences in the LPA do also not conflict with the terms of the advance decision.

Photo by Olga Kononenko on Unsplash.

Chris Rattigan-Smith