If the person you care for loses the mental capacity to make decisions, you have the ability to act on their behalf - providing you have taken out one of the following legal documents:
Either of these documents needs setting up before the person you care for loses mental capacity. It's much more difficult to make the appropriate arrangements once mental capacity is lost.
With a Living Will, you can detail whether you wish to receive medical treatment, if you lose the capacity to decide for yourself. The document will normally include your preference to refuse or accept treatment in very specific circumstances, so doctors and nurses can make decisions on your behalf. A Living Will should be drawn up with a qualified person and signed and witnessed so that it is legally valid.
An LPA enables you to appoint one or more people (Attorneys) to look after your affairs if you lose mental capacity in the future. There are two types of LPA: (i) Property and Financial Affairs and (ii) Health and Welfare. Depending on your circumstances you may choose to have one or both types. However, LPAs must be registered with the Office of the Public Guardian before they can be used. Once registered, a Health and Welfare LPA cannot be applied until you have lost mental capacity.
what’s the difference?
A Living Will sets out the decisions that you have taken in advance about your future treatment, whereas a Health and Welfare LPA passes the responsibility to make these decisions to your Attorney(s) after you have lost mental capacity. So if you choose an LPA, it is obviously very important to appoint people who you can trust to make the right decisions on your behalf.
Another key difference is that the Health and Welfare LPA has wider scope than a Living Will. Your Attorneys will have the power to make decisions about your medical treatment in all kinds of circumstances, not just life-threatening situations. They can also decide on other aspects of your care, such as whether this takes place in your own home or a care home.
If you are considering a Living Will or LPA, it is essential to take expert legal advice so that the resulting document(s) are both legally valid and accurately reflect your wishes should you become unable to make your own decisions.
Living Wills and Powers of Attorney from The Co-operative Legal Services
If you would like further information or advice on the above topics The Co-operative offers professional legal services to give you peace of mind that the right plans are in place. We offer free legal advice and transparent fees, so you know exactly where you stand, and we’ll work with you to find the best solution for you, please call 0844 252 9942.