An important ongoing storyline on ITV soap Emmerdale has drawn much needed attention to the legal and ethical considerations posed by end-of-life care. In the show, fan-favourite character, Moira Dingle, has been grappling with a brain tumour diagnosis and took the decision to make a ‘Living Will’ as she plans for potentially life-saving surgery.
Though perhaps more commonly referred to as a Living Will, the practice is more accurately known in the England and Wales as an ‘Advanced Decision to Refuse Treatment’ (often shortened to Advanced Decision). This legal document enables individuals to specify medical treatments they do not wish to receive in the future, should they become unable to make those decisions themselves.
However, an Advanced Decision is not the only option available to those who need or want to take greater control over their future wellbeing, and many people these days instead choose to create a Lasting Power of Attorney (LPA), which can offer greater flexibility and cover both health and financial decisions.
Here we assess the key differences between each route;
What is an Advanced Decision?
An Advanced Decision is a legally binding document in England & Wales that allows individuals to refuse specific medical treatments under certain conditions. For instance, it can detail preferences about life-support treatments or resuscitation efforts if a person loses the capacity to communicate their wishes due to illness or injury.
To be valid, an Advanced Decision must:
- be made by someone aged 18 or over, with mental capacity at the time of drafting;
- clearly specify the treatments to be refused and the circumstances in which the refusal applies; and
- be signed and witnessed, especially if it involves the refusal of life-sustaining treatment.
While an Advanced Decision offers clarity and control over medical care, it is limited in scope. It only addresses the refusal of treatment, not the consent to it, and does not allow for broader decision-making over a person’s welfare or finances.
Why are Lasting Powers of Attorney preferred?
In practice, many people now choose a Lasting Power of Attorney (LPA) for Health & Welfare instead of an Advance Decision. An LPA enables individuals to appoint someone they trust, such as a loved one or a close friend, to make healthcare decisions on their behalf should they lose capacity. Unlike an Advance Decision, which is static and only applies to specific scenarios outlined in advance, an LPA is far more flexible.
Here are some of the advantages LPAs have over Advanced Decisions:
- Flexibility: Unlike an Advanced Decision, which can be rigid and narrowly focused, an LPA allows the appointed attorney to make a wide range of health and welfare decisions, including those involving unforeseen medical situations.
- Broad scope: LPAs can address decisions beyond medical treatment, such as care home arrangements and day-to-day personal care.
- Ongoing dialogue: An attorney can actively engage with medical professionals and family members to make real-time decisions that align with the individual’s best interests.
- Easier to update: LPAs can be modified or revoked with relative ease as circumstances or preferences change.
It is possible to have both an Advance Decision and an LPA for Health & Welfare, but the relationship between the two requires careful planning. An LPA can override an Advance Decision unless the Advance Decision is made after the LPA and explicitly states that it should not be overridden. Legal advice is essential to ensure these documents work in harmony.
The legal and emotional implications
Both Advanced Decisions and LPAs are legal tools that require careful consideration and professional advice to ensure they are drafted correctly.
Storylines like Moira’s help bring attention to these critical planning tools, encouraging viewers to consider their own preferences for future healthcare. With the emotional weight of her decision to create a Living Will, the show underlines the importance of thinking ahead and discussing wishes with family and professionals.
Ultimately, whether through an Advance Decision or an LPA, taking steps to ensure future medical care aligns with personal values provides peace of mind for individuals and their loved ones. These tools empower people to retain some control over their care, even in the most challenging circumstances.
Whatever your decision, consulting with a legal advisor or solicitor who specialises in estate planning can help in understanding these options fully and tailoring them to individual needs and circumstances. To discuss your options, please do not hesitate to contact our specialist team.
