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Clarifying who will make decisions for you if you can no longer do so

Posted on 31st May 2017

Lasting power of attorney and advance decisions are two ways you can ensure your wishes are fulfilled if you are no longer capable of making decisions yourself explains Nicola Waldman.

Having the mental ability to make decisions about our health or medical care is something we take for granted.

The possibility that one day we may not be able to manage our own affairs or make our own decisions is something we don’t like to think about but we can never be sure what the future holds. With an increasing number of people living longer and being diagnosed with dementia it is prudent to consider and plan for such a possibility.

Clarifying your wishes about the care you would like to receive if you can no longer make decisions for yourself due to an accident, dementia or as you reach the end of your life, also allows your family and those close to you to be clear on what you would have wanted and avoids speculation about who is responsible for making decisions.

A health and welfare lasting power of attorney

The only certain way to ensure that someone we choose and trust can make decisions on our behalf, if we lack the mental ability to do so, is to make a lasting power of attorney (LPA).

If you lose the capacity to make decisions for yourself without having an LPA in place, then you will not have a say in who is appointed to make health and welfare related decisions on your behalf. In some cases, a local authority may have to step in.

If someone is willing to step in they would need to apply to the court to become your deputy. This is a more expensive and complex process than that required to make an LPA and the person appointed will not necessarily be the person you would have chosen.

A health and welfare LPA allows you to plan ahead by appointing a person (or people) to make decisions on your behalf regarding your personal healthcare and welfare.

Such decisions can only be made by somebody else should you lack the capacity to make them for yourself, for example because you are unconscious or through the onset of dementia.

Significant decisions might include giving or refusing consent to particular types of healthcare, including medical treatment, or deciding to live in your own home, perhaps with support from social services, or whether residential care would be more appropriate.

You can also give your attorney the power to make decisions about day-to-day aspects of your personal welfare, such as your diet, your dress, or your daily routine.

Advance Decisions

You may want to clarify your wishes about end of life care in particular, which you can do in an Advance Decision (AD), often called a living will. Not to be mistaken with an Advance Statement, which allows you set out your health and care wishes, but unlike an AD, is not binding.

The AD sets out in more detail the circumstances where you wish your attorney to exercise the power to withdraw life sustaining treatment and thus allow you to die and are perhaps more accurately described as a decision to refuse treatment in certain circumstances. In this way, they are more limited than an LPA for health and welfare.

You can use the AD to ensure you do not undergo treatments that will keep you alive longer when you are in a lot of pain or have a very limited quality of life. However, this is not the same as asking someone to end your life or to help you end your life, as assisted suicide and euthanasia are illegal under English law.

There is no set form for an AD but there are certain requirements you must follow to ensure that it is valid and binding. You can, if you wish, outline specific medical conditions where you would want treatment to be stopped, for example, refusing to be resuscitated in the event of cardiac arrest, refusing assisted ventilation if you cannot breathe yourself or refusing artificial feeding if you are unable to swallow safely.

An AD can stand alone but can also be used in conjunction with an LPA for health and welfare where the attorney is given the power to refuse life sustaining treatment on your behalf if you are not able to do that yourself. You can then let your attorney(s) know your wishes, so that they have some guidance on what you would like to happen. However, if you do give your attorney(s) that power, then you should avoid having a separate AD as this can override the LPA. The alternative is not to give your attorney(s) power and then the two documents can co-exist. This means that the attorney(s) can make other decisions regarding your health and welfare, but not decisions about life sustaining treatment, which would then be made by the doctors, no doubt in consultation with your attorneys.

Thinking about a future where you are not able to make these kinds of decisions for yourself is tough yet, for many it is reassuring to have set out their wishes in this way. For friends and relatives caring for a loved one who no longer has capacity to make their own choices, having a clear guide as to who is responsible for making decisions and what they would have wanted for themselves can make it easier to cope with what is often a stressful and difficult time.

This article first appeared in Final Choices, May 2017.

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