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20th October 2023

Decisions, decisions: what is an advance decision and how is it different from a Lasting Power of Attorney?

Decisions, decisions: what is an advance decision and how is it different from a Lasting Power of Attorney?
Charlotte Simm
Charlotte Simm

Many people will be familiar with the term ‘Power of Attorney’ but perhaps fewer will have come across the term ‘advance decision’. Advance Decisions have long been recognised at common law and were enshrined in statute under the Mental Capacity Act 2005.

Like a Lasting Power of Attorney (LPA) for health and welfare, an advance decision - sometimes also referred to as a ‘living Will’ - is a document which can facilitate choice and autonomy in relation to a person’s healthcare. However, the two documents have different legal effects.

In summary, an LPA for health and welfare is a document whereby a person (the donor) provides their chosen attorney(s) with authority to make decisions about the donor’s health and care on the donor’s behalf if the donor should lose mental capacity to make such decisions themself in the future. This includes, if wished, giving the attorney(s) the power to give or refuse consent to life-sustaining treatment on the donor’s behalf. 

The Mental Capacity Act 2005 defines an advance decision as a decision made by a person (the decision-maker), who must be over the age of 18 and have mental capacity to make such decision, refusing the giving or continuing of specified medical treatment if, at the time in the future at which that treatment is to be given or continued, the decision-maker has lost capacity to consent to it. In short, it allows the decision-maker to decide in advance if there is any specific type of medical treatment (including life-sustaining treatment) that they do not want to receive in the future. 

The Mental Capacity Act 2005 Code of Practice notes that the meaning of ‘life-sustaining treatment’ will depend, in any individual case, not only on the type of treatment but also on the particular circumstances (so that, for example, in some situations, a simple course of antibiotics may be life-sustaining).

A key benefit of an advance decision is that it can provide clarity as to the decision-maker’s wishes to refuse a specific form of treatment if the circumstances specified in the advance decision should ever arise, thus reducing scope for family disagreement based on what others may believe those wishes were. 

In the case of a decision-maker who has been diagnosed with a degenerative or terminal condition, or who subscribes to a particular religious or belief system, it can provide the means for their values to be acted upon when they are unable to communicate their wishes in the future. However, an advance decision cannot be used to refuse basic care such as warmth and the offer of food and water by mouth, or to request for one’s life to be ended. 

It is possible to make both an LPA for health and welfare and an advance decision, but whichever document was made most recently will take priority over the other. If it is wished for both types of document to co-exist, it is important that the wishes in each document do not conflict. 

It will be appreciated that a possible limitation of an advance decision is that it may not take account of future developments in medical treatment, whereas in the case of a suitably structured LPA, a decision regarding proposed treatment could be made (albeit by the attorney(s) rather than by the donor) at the relevant time in the light of up-to-date medical developments.  

It is advisable for anyone considering making either an advance decision or an LPA to seek appropriate advice to ensure that their wishes are appropriately implemented.