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Lasting Power of Attorney and Advance Decision - planning for your health care

We all want our wishes to be respected when it comes to decisions regarding our medical care. This is particularly important if our state of health means that we no longer have the mental capacity to make those decisions independently. Therefore, it is a good idea to make provision before the situation arises.

This can be done by drafting an Advance Decision, sometimes referred to as a living will, or a Lasting Power of Attorney (Health & Welfare). It is possible to hold both, and whichever is the most recent takes priority when decisions about treatment need to be made.

The key distinction to make between the two options is that Advance Decisions involve an individual making their own decision and specifying any medical treatment that they wish to refuse, whereas a Lasting Power of Attorney is more flexible, in that a trusted person is appointed by an individual to make those decisions on their behalf when the time comes.

An LPA for Health & Welfare takes effect once it has been registered by the Office of the Public Guardian (OPG) and the person who has signed it becomes mentally incapable.

A recent case in the news highlights the importance of making relatives aware that such a document exists and that it is stored securely in a place where it can be easily accessed at the appropriate time.

An Advance Decision was misplaced by a Warwickshire hospital which led to a woman being artificially fed and kept alive for 22 months against her wishes, following a catastrophic stroke.

The failure led to the family of the 81-year-old, who were initially unaware that the advance decision existed, being awarded £45,000 in damages and they received an apology from the hospital.

The Advance Decision stated that she should not receive life-prolonging treatment in the event of her becoming mentally incapable and only be administered pain-relieving drugs.

The woman had a stomach peg fitted for direct feeding and was discharged to a nursing home after three months in hospital. It was only just before she was re-admitted to hospital that her GP became aware of the document and requested, with her family’s consent, that her treatment be withdrawn in accordance with the wishes it contained. The feeding tubes were duly removed, and she died shortly after.

Following the case, the hospital trust in question accepted that it had ‘failed to store the advance directive in a way that it could be easily noted’ and announced that it had begun record the existence of an Advance Decision on the front page of a patient’s notes.

The phrase ‘next of kin’ frequently arises in relation to the medical treatment or care of a person. It is a commonly held belief that this definition refers to someone’s closest relative, who has some authority to make relevant decisions on their behalf. Unfortunately, however, this is not the case as ‘next of kin’ does not mean anything in law or bestow any legal powers.

In reality, only health and care professionals, such as doctors and social workers, can decide on a mentally incapable person’s medical treatment and care. In the process of making these decisions, they should consult with those people who are close to the person concerned, i.e. relatives or nominated individual. That said, the final decision rests with the health and care professionals involved. If a Lasting Power of Attorney (LPA) for health and welfare is in place, then such decisions can be made by the appointed Attorney instead.

It is important to get specialist legal advice regarding Advance Decisions and LPAs. Buckles Solicitors can offer Advance Decisions free of charge.

If you would like to discuss Lasting Power of Attorneys further, please contact Paul Belliere-Wilson on 01780 484570 or email paul.belliere-wilson@buckles-law.co.uk