Issues to consider when deciding between a Lasting Power of
Attorney and an Advance Decision to Refuse Treatment – England
and Wales
This factsheet outlines the differences between Advance Decisions to Refuse
Treatment (commonly called an Advance Decision) and Health and Welfare Lasting
Powers of Attorney. It is applicable to people living within England and Wales. If you
don’t live in England or Wales, or would like further information about your end-oflife rights and choices you can call our free Information Line on
0800 999 2434
There are two separate types of Lasting Power of Attorney (LPA); a Property and
Financial Affairs LPA, which covers areas of your life where money and property
are involved, and a Health and Welfare LPA, which relates to decisions about your
health, personal care and welfare. This factsheet only concerns a Health and
Welfare Lasting Power of Attorney.
What is an Advance Decision to refuse Treatment?
An Advance Decision to Refuse Treatment (commonly called an Advance Decision)
is a document that allows you to make a legally binding refusal of medical treatment
in advance of a time when you can’t communicate your wishes or don’t have the
capacity to make a decision. You can use an Advance Decision to refuse any
treatment, including life-sustaining treatment such as resuscitation, artificial nutrition
and hydration, or breathing machines.
What is a Lasting Power of Attorney for Health and Welfare?
A Health and Welfare LPA is a written document that gives one or more trusted
persons the legal power to make decisions about your health and welfare if you
lose the capacity to do so yourself. Your Attorney(s) can make decisions about
anything to do with your health and welfare such as refusing medical treatment,
where you are cared for and the type of care you receive, as well as day-to-day things
like your diet, dress and daily routine. You can also choose whether or not you want
your Attorney to be able to make decisions about life-sustaining treatment.
Attorneys only begin to act for you if you lack the capacity to make or communicate
the decision(s) in question, for example if you have severe dementia or are in a
coma. Your Attorney can not make decisions for you if you are able to do so
yourself.
‘Mental capacity’ is the ability to make decisions for yourself about a particular
matter. Having ‘capacity’ means having the ability to understand and retain
information relating to the decision, understanding the consequences of any choice
you make, taking that information into account, and being able to communicate
your wishes. For decisions about your health, care and consent to or refusal of
treatment, a doctor or other healthcare professional will need to decide whether you
have the capacity to make that decision.
Things to consider as part of your decision
1. Timescale: An Advance Decision comes into effect as soon as it has been
signed and witnessed correctly, whereas an LPA is only valid once it has been
registered with the Office of the Public Guardian, which can take up to eight weeks.
2. Flexibility: In an Advance Decision, it is only the refusal of medical treatment
that is legally binding and Advance Decisions are only applicable to the specific
treatments and circumstances you choose to detail within it. It will not apply if you
find yourself in circumstances you did not envisage at the time of writing. It is
therefore a good idea to try to complete it in as much detail as you can and
consider different medical situations that might arise and are important to you.
An LPA is more flexible because it applies to a wider range of healthcare situations,
whether or not you specifically envisaged them at the time of appointing your
Attorney. Should you lose the ability to make or communicate decisions for
yourself, your Attorney will be able to make any health and welfare decision on your
behalf, for example deciding where you live and how you are cared for, your diet
and what you wear, as well as making decisions about life-sustaining treatment if
you give them that power.
3. Interpretation: An Advance Decision is in your own words and represents your
decisions so you do not need to rely on another person to make choices for you.
With an LPA you have to rely on your Attorney(s) to make decisions for you. You
therefore need to trust your Attorney to understand your wishes, respect your
values and to be available to make the best decision for you. Your Attorney must
also feel confident and comfortable making potentially life-changing decisions on
your behalf.
4. People involved: In order to complete your Advance Decision you only need
one person to witness it (although we recommend having 2 witnesses, and also
getting your GP to sign to witness your capacity).
To appoint a Lasting Power of Attorney, you need at least one person to act as your
Attorney, as well as a witness, an independent person or relevant professional to
‘certify’ your application, and up to five persons to be notified of the application.
5. Cost: An Advance Decision is free. An LPA currently costs £110 to register,
although those on a low income or certain benefits are exempt from these fees.
6. Accessibility: Both an Advance Decision and an LPA are legally binding. In
practical terms, however, you need healthcare professionals involved in your care
to know that you have made an Advance Decision or elected an LPA. This happens
in different ways.
 An LPA is approved for registration by the Office of the Public Guardian and
then entered on a register that is searchable by healthcare professionals
caring for you. It would also be advisable to let your GP know that you have
an LPA.
 Advance Decisions are not centrally registered but you can give a copy to
your GP or local hospital; some Ambulance Trusts are happy to record that
you have one, or you can carry one a Notice of Advance Decision card or
wear a Medic Alert bracelet. You can also ask your GP to add the fact that
you have an Advance Decision to your Summary Care Record (an electronic
record of important information about your health that is accessible to any
health or care professional 24 hours a day). Only the fact that you have an
Advance Decision will be noted, not the details set out in the form itself, and
the presence of your Advance Decision will only be noted if you specifically
ask your GP to do so.
Should I have both an Advance Decision and a Health & Welfare LPA?
There are some issues to consider around whether to have both a Health and
Welfare LPA and an Advance Decision because the order in which you make them
can affect their validity.
If you have an Advance Decision and an LPA you should let your Attorney know
and discuss the content of your Advance Decision with them.
Making an LPA can invalidate an Advance Decision.
If both the LPA and the Advance Decision deal with refusing the same treatment,
the more recent will take precedence for dealing with that treatment.
For example, if a Health and Welfare LPA that gives authority to make decisions
about life-sustaining treatment is made after an Advance Decision, then the
Advance Decision will become invalid, and all decisions about treatment will be
referred to your Attorney(s).
However, if a person makes a Health & Welfare LPA first, and then subsequently
makes an Advance Decision that is valid and applicable to the circumstances the
person is in, the healthcare team would refer to the Advance Decision when
deciding what treatment to give.
How can we help?
- Compassion in Dying can send you a free Advance Decision form
- We provide a free and comprehensive guide to Your Rights at the End of Life
- The following Compassion in Dying factsheets may be helpful:
- Understanding Advance Decisions to Refuse Treatment– England and
Wales
- Understanding Lasting Powers of Attorney for Health and Welfare –
England and Wales
If you would like any of the factsheets mentioned here, or help with completing an
Advance Decision, making a Lasting Power of Attorney, or information about endof-life rights more generally please call our free Information Line on 0800 999
2434 or visit our website www.compassionindying.org.uk.