I have a Living Will – do I need a Lasting Power of Attorney?

Asthe New Year begins there is no better time than to think of your loved ones. Utilisethat new year zeal to sort out the niggly future planning you have been putting off.

Planning for future loss of capacity is often, understandably, the last thing that many people want to think about. However, getting it sorted can actually be a liberating experience. Providing reassurance and comfortthat you and your family will be taken care of no matter what the future may bring.

That being said, it is not always easy to know what needs doing. People often come to us with little idea about the options available or confused by the legal jargon. As such, I have answered some of the most frequently askedquestions; what is the difference between a Living Will and a Lasting Power of Attorney? And do I need both?

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) allows you to appoint people called attorneys to manage your affairs should become unable to make decisions.They can be used ina range of situations from assisting with the finances for people with severe dementia to making emergency medical decisions for people who are rendered unconscious in a car accident. Youmust make your LPAs whilst you still have capacity but once registered they will take effect if you are no longer able to make decisions for yourself.

There are two types of LPAs:

• Health and Welfare; and
• Property and Finance.

You can chose to have just one type of LPA with no obligation to have both. You can also appoint different people to be attorneys of your different LPAs. Meaning that you do not have to have the same person making decisions about your finances andhealthcare.

Who should be your Attorneys?

Attorneys can be your friends, family or even a professional such as a lawyer or an accountant. They will be able to step into your shoes and manage things on your behalf. This could involve:

• contacting banks to set up or cancel direct debits;
• managing your investments or business;or
• talking to your doctors to makedecisions about your healthcare and living arrangements.

They have a duty to act in your best interest.They are not able to act while you still have capacity unless you consent to them doing so.

What happens if I do not have an LPA?

Without an LPA in place your family or friends will not necessarily be able to manage your affairs. Nor make health and welfare decisions on your behalf if you were to become incapable to do so. Whilst there are other ways to apply to manage the finances and medical welfare of people without capacity. It is an expensive process and it can take a long time to come into effect. A Health and Welfare LPA is a simple way to ensure that your Attorney is able to be a part of the decision making process.Providing you a voice on all aspects of your health including medical treatment, the type of care you receive and end of life care.

What is a Living Will?

A Living Will (also known as an Advance Decision) is a signed documentto refuse specific types of treatment in advance. Since October 2007, Living Wills that fulfil certain requirementsare legally binding and must be complied with by medical professionals.

Living Wills document your wishes about medical care in the event that you lose capacity to makeor communicatedecisions. They allow you to refuse life-sustaining treatments such as CPR, ventilation and antibiotics for life-threatening infections.On the other hand,they do not allow you to request a particular medical treatment, or refuse basic treatment and food and water. They also do not allow you to nominate someone else to make medical decisions for you in the way a Health and Welfare LPA does.

What happens if I do not have a Living Will?

Medical professionals will confer with your loved ones to decide your medical treatment. This will bebased on what is deemed in your best interests and on what is known of your wishes.

Can I have both?

The short answer is yes!A Living Will is not a replacement for a Property and Finance LPA. Therefore if you want someone to look after your finances then you still need a Property and Finance LPA.

In addition, even if you have a Living Will it's still worth considering if you would like a Health and Welfare LPA. The powers Attorneys have are far broader and more flexible than the statements that you can include in a Living Will. As Attorneys do not only deal with the refusal of end of life medical treatments but decisions about all aspects of your health including medical treatment, the type of care you receive and end of life care. Your Health and Welfare LPA can include instructions as to how you wish your Attorneys to act and they have a duty to act in your best interests, considering bothyour past and present wishes.

If you do have a Living Will as well as a Health and Welfare LPA you should ensure that they do not contradict each other.

It is worth thinking through your options carefully - please contact us if you have any questions regarding LPAs or Living Wills and we will be happy to help.

This article was written by Mark Jones. Mark is a Partner in our Personal Law Department and is based in Harrogate.

Mark specialises in the creation and administration of trusts, tax planning and wills as well as probate work, particularly those where the family has fallen out and contentious issues have arisen.

Further advice please contact Mark Jones on 01423 502211 or ku.oc1714388063.fcl@1714388063senoj1714388063.kram1714388063