Health & Welfare LPA or Advanced Decision?


30th April 2020

If you have been looking into your future medical treatment, should there come a time where you lack the capacity to make the decision yourself, you have probably come across two possible alternatives: a Health and Welfare Lasting Power of Attorney (H&W LPA) and an Advanced Decision (AD).

Here we will look at how they compare against each other and why you might prefer one over the other, should you chose a Health & Welfare LPA or Advanced Decision?

Scope of Health & Welfare LPAs and ADs

Advanced Decisions are much more limited in scope than Health & Welfare LPAs; they can only cover medical treatment, and in particular the refusal of medical treatment (while you can use them to request to receive certain medical treatment, is not enforceable). The features of an AD are covered in more detail in in our other blog.

A H&W LPA has the ability to cover a much wider range of your needs. In addition to covering any medical treatment you will receive, a health and welfare attorney can also make decisions such as where you live, how and where you are cared for, and decisions in relation to your daily routine such as your diet and clothing.

Ease of creation

AD’s are much more easily created and at substantially lower cost. This is because, other than in certain circumstances, there are no formalities which need to be adhered to, and they can even be made verbally. If you contact your GP, they may have standard templates you may choose to use. Once made, ADs are valid immediately.

By contrast, a H&W LPA can take more time to prepare as we advise that you should speak with the attorney(s) you are intending on appointing. There are also more formalities which must be followed such as notifying people that you are registering an LPA. They also involve a one-off court fee of £82 and can take up to 10 weeks to register with the Court of Protection.

Enforceability

In order for an AD to be enforceable, you must have been 18 or over and have had mental capacity when you made it. While there is a presumption of capacity this can be rebutted if there were reasonable grounds to doubt that you had capacity at the time. It may also not be enforceable if, after the AD had been made, you subsequently acted in a way which was inconsistent with the AD.

As soon as it is registered, a H&W LPA will be enforceable and an attorney will be able to make decisions on your behalf, with your permission.

Can I have both an Advanced Decision or Health & Welfare LPA?

While there is nothing to prevent you from having both, this can cause some logistical issues if they conflict. If you create an AD after creating a H&W LPA, then the attorney you appoint cannot consent to any treatment which is refused in the AD. Similarly, if the H&W LPA is created after the AD, the LPA will take precedence. It is possible for a H&W LPA to take into account an AD (and vice-versa), although careful wording is required to ensure a conflict is avoided.

How we can help

Please contact us if you would like any more advice on which would be the most suitable for you, or if you want help preparing either an AD or H&W LPA.

This article has been co-written by Arshoo Singh and Alex Lepretre.

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