Living Wills and Lasting Powers of Attorney

The tragic case of Archie Battersbee, which unfolded a few years ago, highlighted just how difficult end of life decisions can become when a person’s wishes aren’t known. His family faced an incredibly painful legal process, unable to make the decisions they felt were right for their child.

More recently, another high-profile situation emphasised the same challenges. In this case, life-sustaining treatment was withdrawn from an adult patient without the agreement of loved ones, prompting urgent legal intervention. It raised important questions about how such decisions should be made and the safeguards that ought to be in place.

Together, these cases show why it is so important for adults to plan ahead. By making an Advance Decision and/or a Health and Welfare Lasting Power of Attorney (LPA), you can ensure your wishes are clear and prevent your family from facing distressing uncertainty.

A “Living Will” is a commonly used term for a document expressing wishes regarding medical treatment. The correct legal term is, in fact, an “Advance Directive”. While it is not a Will, as it does not deal with a person’s property or assets upon their death, it is designed to allow anyone over the age of 18 with full mental capacity to create a statement of the medical treatment they would like to refuse or how they would prefer to be cared for.

Although basic care and treatment cannot be refused, and neither can specific treatment be demanded, a properly prepared statement of Advance Decisions (often called a Living Will) is legally binding. This is similar in principle to a DNR/DNAR (Do Not (Attempt) Resuscitation) request.

Living Wills and Advance Decisions deal with end-of-life treatment and care, and a Health and Welfare Lasting Power of Attorney allows you to appoint one or more trusted individuals (your “attorneys”) to make decisions on your behalf if you lose mental capacity.

These decisions may relate to:

• Daily care and personal routines
• Medical treatment
• Where you live
• Life-sustaining treatment, if you choose to give your attorneys this authority

A further statement of guidance can also be produced to inform your attorneys of your wishes so that these can be carried out on your behalf if the eventuality arises. Furthermore, while an application to the Court for an order can be made, there is no guarantee it will be heard or granted in time. Without an LPA, your loved ones may need to apply to the Court of Protection, which can often be a time-consuming, costly and stressful process.

Many people find that having both an Advance Decision and a Health & Welfare Lasting Power of Attorney offers the strongest protection for their future medical wishes. By putting both documents in place, you ensure;

• Your Advance Decision sets out your non-negotiable wishes, giving your future medical team clear direction.
• Your attorneys, appointed through the LPA, can interpret your values, apply your preferences to real-life situations, and make decisions where your Advance Decision doesn’t apply.
• Together, they remove ambiguity, reduce the likelihood of family disputes, and give clinicians both clarity and a designated person to consult.
• Most importantly, they keep your voice central to your care, ensuring your wishes are understood even if you are unable to communicate them yourself.

Having both documents in place provides the strongest possible protection for your autonomy, offering confidence and peace of mind that your treatment preferences will be known, upheld, and respected.

At Backhouse Solicitors, our expert solicitors would be happy to draw up a Living Will for you or offer advice surrounding Lasting Powers of Attorney for Health and Care Decisions. Contact our friendly Private Client team to book your free 30-minute appointment.

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Email: info@backhouse-solicitors.co.uk
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