Our free July 2021 CPD on using instructions and preferences in Lasting Powers of Attorney is now live in the partner area of the WillPack website. The article below is an extract of the CPD.
Any WillPack partners who completed the April CPD has been automatically enrolled into the July CPD. The CPD is available for free to any WillPack partner who has joined or submitted work in the previous 12 months. If you have not enrolled and wish to do so please email [email protected].
Life Sustaining Treatment
Life sustaining treatment is any treatment that a doctor or healthcare professional considers necessary to keep the donor alive. What is actually covered can vary from case to case but can include:
- Lifesaving surgery, such as a heart bypass
- Organ transplants
- Artificial hydration and nutrition
- Cancer treatments
- Antibiotics, for example if the donor has pneumonia
The donor of an LPA for Health and Welfare has two initial choices regarding life sustaining treatment. They can choose to give their attorneys the authority to make life sustaining treatment decisions in the LPA (option A) or alternatively can refuse to give the attorneys that authority (option B).
If option B is chosen it will be down to healthcare professionals to make decisions on the donor’s life sustaining treatment, (subject to any applicable advance decision of the donor if any). In the event of any doubt on which option the donor has selected, the OPG will consider that Option B has been selected.
If option A is selected, the donor could either let the attorneys make these decisions as they see fit or alternatively the donor can include instructions and preferences in the LPA to guide the attorneys.
For example, the donor could include instructions that state:
- The attorneys must not agree to any life sustaining treatment if the donor is in a permanent or persistent vegetative state
- Circumstances in which they would not like to be resuscitated
The LPA could contain the following as preferences:
- If the donor is in the last states of a terminal illness, they would only wish for treatment to make them comfortable and would not like treatment that would prolong their life.
- If the donor has any preferred treatments that they would like to receive, for example they would like experimental treatments.
Advance Decisions and Health and Welfare LPAs
Health and Welfare LPAs are not the only way in which a person may detail some wishes on medical treatment after they have lost mental capacity, they may also consider making an Advance Decision. These are also known as an Advance Decision to Refuse Medical Treatment, a Living Will and an Advance Directive.
This is a document make by a person refusing consent to the giving or continuing of certain medical treatments. As these deal with mental treatment after a person has lost mental capacity, there is overlap between an Advance Decision and a Health and Welfare LPA. The exact relationship between the two documents depends on which document was created first.
If a donor creates an Advance Decision after a Health and Welfare LPA, attorneys cannot consent to any treatment refused in the Advance Decision. Being the later document, the advance decision will overrule authority granted to the attorneys over those specific decisions.
If a donor creates a Health and Welfare LPA 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 donor wishes for the Advance Decision to still be valid following the creation of the LPA, an instruction should be included within the LPA to achieve this. Care should also be taken to ensure no instructions in the LPA conflict with the terms of the Advance Decision which would cause confusion. A copy of the Advance Decision should also be provided to the OPG when the LPA is registered.