Lasting Powers of Attorney and Advance Decisions — why you should plan ahead

Life is unpredictable. While we hope for the best, it's wise to prepare for the unexpected. Many of us plan for retirement or our estate, yet it’s common to overlook the critical importance of planning for potential incapacity. Whether through illness, injury or ageing, there may come a time when we can’t make decisions for ourselves — so it’s vital to plan ahead. 

Two key tools are Lasting Powers of Attorney and Advance Decisions, commonly referred to as ‘Living Wills’. Here, Saffia Ahmed from our Brabners Personal team explains how they work.

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a legal document that allows you to appoint one or more people — known as ‘attorneys’ — to make decisions on your behalf either when you lose mental capacity or upon your authority once registered. 

There are two types of LPA:

1. Health and Welfare LPA — this allows your attorney to make decisions about your daily routine, medical care, moving into a care home and life-sustaining treatment. This can only take effect once registered and once you lose capacity to make health and welfare decisions yourself.
2. Property and Financial Affairs LPA — this gives your attorney the power to manage your finances, such as paying bills, managing bank accounts, dealing with investments and selling your home. Since it can be used as soon as it’s registered (with your permission), it can be a useful tool if you need to travel abroad and require your attorneys to deal with your affairs in the UK. 

Creating an LPA involves choosing your attorney(s) (and potentially any replacement attorneys) and registering the relevant documents with the Office of the Public Guardian. It can be a relatively straightforward process, but it’s important to note that an LPA isn’t just for the elderly or those already suffering from health issues — in fact, it’s wise to set one up early so that if anything happens in the future, you’ll already have trusted individuals ready to help.

What are Advance Decisions?

An Advance Decision is a document that allows you to set out your preferences for future medical treatment in case you become unable to communicate or make decisions for yourself. 

Unlike an LPA, which appoints someone else to make decisions for you, an Advance Decision outlines specific treatments that you do or don’t want to receive.

An Advance Decision is particularly helpful in situations like serious illness or end-of-life care. 

Some common decisions that people address in Advance Decisions include whether they:

• Wish to be resuscitated if their heart stops.
• Want life-prolonging treatments like artificial ventilation.
• Prefer certain pain management in terminal illnesses.

An Advance Decision is legally binding — so long as it complies with the Mental Capacity Act and applies to the situation at hand — so healthcare professionals must follow it when you’re unable to make decisions.

What’s the difference between LPAs and Advance Decisions?

While both tools serve to help manage incapacity, there are key differences:

1. Who makes the decision — an LPA allows you to appoint someone (an attorney) to make decisions on your behalf, while an Advance Decision outlines specific treatments you want or don’t want, leaving no room for others to decide for you.
2. Scope — LPAs can cover both health and welfare decisions (including financial matters), while Advance Decisions focus exclusively on medical treatment preferences.
3. Legality — an Advance Decision is legally binding (if it meets the necessary criteria) but LPAs require the appointed attorney to act in your best interest.

When should you create an LPA or Advance Decision?

It’s never too early to plan for the possibility of incapacity. Ideally, both documents should be created while you’re healthy and mentally capable. This ensures that your wishes are clearly understood and legally enforceable if and when the time comes. 

What happens if you don’t have an LPA or Advance Decision?

If you become incapacitated and haven’t appointed an attorney or outlined your treatment preferences, your family may have to apply to the Court of Protection to become your guardian or make decisions on your behalf. This process can be time-consuming, expensive and stressful for your loved ones. There’s also no guarantee that they’ll be able to make decisions in line with your wishes.

Without an Advance Decision, doctors will typically make medical decisions based on what’s in your best interests, though this may not align with your personal preferences.

Be prepared

None of us know what the future holds. Yet we can take steps to ensure that — if incapacity strikes — our wishes are respected. Setting up a Lasting Power of Attorney and/or an Advance Decision will help to protect your rights and ensure that you receive the care you want. 

By being proactive, you can take control over your future medical and financial decisions. Get in touch with our expert estate planning team by giving us a call on 0333 004 4488, sending us an email at privateclient@brabners.com or completing our contact form below.