There is some confusion surrounding the meaning and purpose of a Living Will, legally known as an Advance Decision, an Advance Statement and a Lasting Power of Attorney for Health and Welfare.
The key difference is that an Advance Decision is a record of a decision you have made yourself, for use if you later lose mental capacity, whereas a Lasting Power of Attorney appoints someone else to make those decisions for you if mental capacity is lost.
What is an Advance Decision?
A Living Will or Advance Decision is a statement in which you refuse specific medical treatment. This is in case you have lost mental capacity at the relevant time. It is important to understand that it cannot be used to request particular types of treatment; it can only be used to refuse treatment.
An Advance Decision is a legally binding document as long as it complies with certain requirements.
The document must give details of exactly what treatment the patient wants to refuse and explain in what circumstances it should apply. It is also useful to give reasons for the decision, for example religion.
If you wish to refuse life sustaining treatment then your Advance Decision must be in writing and signed by you in front of a witness. It must also contain a specific statement which says that your Advance Decision applies even when your life is at risk.
What is an Advance Statement?
Often, when making an Advance Decision, an individual may want to prepare an additional statement giving further details of their wishes and feelings about future treatment and care. An Advance Statement is not legally binding but it would usually be taken into account by medical professionals and family. It acts as further guidance and assists people to make decisions in your best interests.
An Advance Statement could be included in a Lasting Power of Attorney for Health and Welfare, or in a separate document.
What is a Lasting Power of Attorney (LPA) for Health and Welfare?
An LPA for Health and Welfare allows a person to appoint attorneys to make decisions regarding their health and welfare when they no longer have the mental capacity to make such decisions themselves. These decisions can include decisions regarding the sort of healthcare you require, moving to a residential care home, as well as day-to-day issues such as your diet and dress. There is also an option for you to give your attorney(s) the authority to consent or to refuse life sustaining treatment.
The LPA document does allow you to include guidance, restrictions and conditions regarding the decisions that the attorney(s) make.