Living Will or Lasting Power of Attorney?

Melanie Christodoulou

Senior Associate

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September 14, 2017

Categories Elderly and Vulnerable ClientsWills and Inheritance

…That is the Million Dollar Question.

What do Living Wills and Lasting Powers of Attorney have in common?  What are their differences?  Many people do not understand these documents and it is clear why!

To simplify the definition, a Living Will (often referred to as an Advance Decision or an Advance Directive) is a record of the decisions you yourself have made about your health and care needs if you were to lose mental capacity.

Whereas a Lasting Power of Attorney (LPA) is a delegation  to other individuals the power to make health and care decisions on your behalf if you were to lose mental capacity.  These individuals are referred to as ‘attorneys’.

Below, I answer some common queries in relation to these documents:

Q. Can I have both a Living Will and a Lasting Power of Attorney?

Yes, you can put in place both documents, however the order in which the documents are signed affects their validity.  It is very important that you discuss with your advisor the following:

  1. What it is you want to achieve in creating the documents
  2. How much discretion you want your family and medical professionals to have
  3. The implications of creating both documents

Q. Why record your wishes in advance in a Living Will?

There are many reasons why you may want to create a Living Will:

  1. To think about the future
  2. To give you peace of mind about your health and care needs
  3. If you hold strong views about a health situation
  4. If you have a life-limiting illness and want to ensure your wishes are met
  5. To record your views on life-sustaining treatment

Q. If I have a Living Will, why bother with a Lasting Power of Attorney?

A Living Will can only record your wishes as to medical treatment.

A Lasting Power of Attorney records your wishes as to medical treatment, but also records your wishes as to other welfare matters, such as where you live, what you wear and other general welfare needs.  However, the LPA appoints attorneys to make these decisions for you.  An LPA also puts the attorneys in a position where they can complain about the health or welfare treatment you are receiving.

Q. Are there any key advantages/disadvantages with these documents?

It is important to note that if your views about life-sustaining treatment change and/or there are material developments in health care opportunities, if you have a Living Will that is valid then its terms will be implemented even if your views later change and you have not had the opportunity to change the document.

With an LPA, you can voice your preferences to your attorneys.  If these change over time then your attorneys will be able to decide what your wishes were based on past instructions and the current developments.

However, if you give power to your attorneys in a Lasting Power of Attorney to make decisions about life-sustaining treatment, then you essentially lose an element of control, as your attorney makes the decision about life-sustaining treatment.  With a Living Will, you are still in control.

No one wants to think about losing mental capacity, but thinking about it now provides reassurance that your wishes will be adhered to.