Planning ahead in relation to your health and welfare

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As people are living longer there is a growing awareness of the issues and dilemmas that can face individuals in later life or those close to them.

The Mental Capacity Act 2005 empowers individuals to make provision in advance so that health and welfare decisions may be made on their behalf, should they ever lose mental capacity to make those decisions for themselves (whether that loss of capacity is through old age or unexpectedly at any time through an accident or illness).

This means that important decisions can be taken in line with your views and wishes. For example, decisions in relation to your medical treatment, refusal of life sustaining treatment and decisions about where you should be cared for.

Setting out in advance your decision to refuse treatment should you lack mental capacity to refuse or communicate your refusal at the relevant time is sometimes referred to as a ‘Living Will’. The expression ‘Living Will’ is in fact an umbrella term which encompasses several quite distinct types of advance planning around health and welfare matters.

Essentially these are: advance decisions to refuse life sustaining treatment; advance decisions to refuse other types of treatment; and advance statements setting out more generally your views and wishes in relation to your future care and wellbeing.

A ‘Living Will’ is quite separate from and completely different to a Will dealing with how your property and assets should be distributed in the event of your death.

Alternatively, and more recently, you could make a Lasting Power of Attorney in relation to health and welfare. Making such a Lasting Power of Attorney allows you to give one person or more than one (your ‘attorneys’) the authority to make health and welfare decisions for you should you ever lack mental capacity to make such decisions for yourself. If you are making a ‘Health and Welfare’ Lasting Power of Attorney, you can decide whether or not you want your chosen attorney(s) to be able to make decisions about life sustaining treatment on your behalf.

Some practical points in relation to effective health and welfare planning:-

  • It is important to discuss your plans with your GP.  This is particularly relevant if you have any specific medical conditions or healthcare needs.
  • It is sensible to involve your family in your plans or at least make them aware of them not least so that any provision you have made is to hand if and when needed.

It is possible to have both a Health and Welfare Lasting Power of Attorney and an advance decision/advance statement in place if that best meets your objectives. Care is needed to ensure the documents operate in harmony and to avoid the possibility of the one inadvertently overriding the other.

  • Some legal points relevant to effective planning for health and welfare:-An advance decision to refuse life sustaining treatment may be legally enforceable provided certain formalities are met. It must include a statement that the treatment in question is refused even if it means the individual’s life is at risk, and it must also be signed and witnessed.
  • An advance decision to refuse treatment which is not life sustaining need not be in writing but carefully documenting such decisions can help avoid uncertainty, dispute and delay.
  • An advance statement in relation to care and wellbeing sets out your wishes so that these may be taken into account (rather than being legally enforceable).
  • A Lasting Power of Attorney in relation to your health and welfare must be registered with the Office of the Public Guardian.  Registering the document as soon as it is drawn up means that it is activated and ready for use if and when required (the registration process may typically take three months).

Anyone over 18 who has the requisite mental capacity may make an advance decision, advance statement or Lasting Power of Attorney.
You can alter or withdraw an advance decision or advance statement or revoke a Lasting Power of Attorney at any time provided you have the requisite mental capacity to do so.

More information

Should you have any questions or queries, please contact Kathryn Woodward.