Which takes priority?– a Lasting Power of Attorney or an advance decision?
Updated: Feb 11
A Lasting Power of Attorney (LPA) is a legal document that lets you, as the donor, appoint one or more people, the attorney(s), to help you make decisions or to make decisions on your behalf.
This gives you more control over what happens to you if you have an accident or suffer an illness and cannot make your own decisions, i.e. you lack mental capacity.
Lasting Powers of Attorney
You can make an LPA in respect of your financial affairs or your health and welfare. It will give your chosen attorney or attorneys the authority to make decisions about your daily routine, where you will live, including whether you should move to a care home, and your medical care. If you wish, you can also give them the power to say whether or not you should have life-sustaining medical treatment.
Without an LPA, your family would not have an automatic right to make decisions on your behalf. This can cause difficulties if they feel that they need to step in to make choices for you and could even result in disagreements. It might mean that someone has to make an application to the Court of Protection to be appointed as your deputy, which is a more complicated process than registering a Lasting Power of Attorney and is also more time-consuming.
LPAs are so important and there can be dire consequences in the event that you do not prepare LPAs.
A recent example is TV personality Kate Garraway’s publicised financial and emotional woes following on from her husband being in a coma in the hospital due to Covid-19.
Although we are talking about a married couple here, this does not dominate the fact that certain bills, policies and accounts are in the husband’s name.
Kate Garraway says:
“One of the practical problems – which a lot of people would’ve experienced if they’ve got the absence of someone in their life – like many things the car is entirely in Derek’s name, the insurance in Derek’s name, a lot of our bank account.
There are a lot of financial outgoings that I’ve talked about… which is making life very complicated because I can’t get access to things… because legally I haven’t got power of attorney.”
Whilst it is important to prepare a Will, it is equally as important to prepare an LPA, for both health & welfare and property & financial affairs.
An advance decision also referred to as a living Will or an ADRT (advance decision to refuse treatment) allows you to decide in advance if there is any type of medical treatment that you do not want in the future.
It means that everyone, including your medical team and your family, will know what your wishes are and disagreements and misunderstandings can be avoided. It also means that you can choose what you want to happen in the future, should you need medical care.
You can if you wish decide to refuse treatment that could potentially sustain your life, to include ventilation, CPR and antibiotics.
An advance decision cannot be used to ask for your life to be ended or to refuse food and drink by mouth or basic care. You cannot ask someone else to decide your treatments on your behalf – an LPA should be used for this.
Order of priority
You can make both an LPA and an advance decision. Wherever possible, you should ensure that your wishes do not conflict. Whichever you made most recently will take priority over the other.
This means that if you made an advance decision then you later register a health and welfare LPA, your attorney under the LPA will be able to overrule your advance decision if you have given them the authority in respect of a particular decision.
Your attorney will always be required to act in your best interests, and this will include taking into account any expression of wishes you may have made in the past. You can tell your attorney about your advance decision and give them a copy.
If you make an advance decision after registering an LPA then your attorney will not be able to override anything it contains.
If you would like to speak to one of our expert LPA lawyers, please call us on 0207 183 4595 or email Emma Aslett, firstname.lastname@example.org
The information provided in this article is not intended to constitute professional advice and you should take full and comprehensive legal, accountancy or financial advice as appropriate on your individual circumstances by a fully qualified Solicitor, Accountant or Financial Advisor/Mortgage Broker before you embark on any course of action.
Please feel free to contact me on 0207 183 4595 or at email@example.com
0207 183 4595