Lasting power of attorney and 'living wills'

Lasting Power of Attorney

Lasting Power of Attorney is a sensible way of planning for future incapacity, whether arising from injury or illness or from old age.

There are two kinds of Lasting Power of Attorney. The first deals with property and financial affairs; the second personal welfare, including decisions to refuse or consent to treatment on your behalf and deciding where you live.

Both types of Lasting Power of Attorney can be drawn up at any time while the donor has capacity. However, they have no legal standing until they are registered with the Office of the Public Guardian (the OPG).

In order to protect against the possibility of abuse, it is important to choose the Lasting Power of Attorney carefully and, in so doing, to consult a solicitor.

If you need to appoint a solicitor, go to the Law Society’s convenient search facility.

When a solicitor is involved in drafting a Lasting Power of Attorney, they are required to satisfy themselves that the donor, that is the person giving the Legal Power of Attorney to another, is mentally capable of understanding the nature and effect of the Lasting Power of Attorney

If the solicitor has any doubts, he or she should seek a medical opinion.

The solicitor also needs to be satisfied that the donor is not being coerced into appointing someone with a Lasting Power of Attorney, or indeed any particular power of attorney.

Advance Decisions, or Living Wills

An advance decision, aka a Living Will, is a document in which the signatory requests that certain medical treatments should, or should not, be given in a particular situation (the directive coming into effect if the signatory is unable to consent or refuse such treatment at the time).

Directives in advance decisions are regulated by the Mental Capacity Act 2005 which creates safeguards relating to validity and applicability.

Where an advance decision concerns treatment that is necessary to sustain life, the directive must be in writing, signed and witnessed.

In addition, there must be an express statement that the decision stands 'even if life is at risk'.

It is a good idea to discuss the terms of the directive with a doctor and for that discussion to be recorded in writing and signed by the doctor.

Compassion in Dying have produced an advanced decision form and helpful advice.

Download your advanced decision form into your Lifebox and inform your close family that it is there so it can be accessed when required.