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What’s the Difference Between a Living Will and a Lasting Power of Attorney?

By Associate, Wills, Tax, Trusts and Probate

I was pleased to hear a High Court Judge call for people to be educated about the importance of making Living Wills recently.

Mr Justice Francis was speaking as he oversaw a dispute about the treatment of a pensioner suffering from dementia at a hearing in the Court of Protection (COP) - where judges consider issues about people who lack the mental capacity to make decisions.

The judge said it should be compulsory for people to make Living Wills so that cases regarding the care of a patient would be resolved much more easily.

While I wholeheartedly agree with this point, it’s vital people understand the difference between a Living Will and a Lasting Power of Attorney (LPA).

Living Wills are legally binding documents which, if properly prepared, set out what you want to happen to you should you not be able to make decisions regarding healthcare and medical treatment in certain situations.

I have many clients who, for various reasons such as religion, are very specific about the care they wish to receive – for example, not wanting to have a blood transfusion.

People can also be specific about things such as what kind of care they want to receive if they develop illnesses such as dementia.

A LPA is also legally binding and sets out to appoint somebody to make decisions for you if you lose mental capacity.

There are two types of LPAs. One is for property and financial affairs and another for health and welfare and they only come into effect when registered with the COP and, in the case of a Health and Welfare LPA, when you lose mental capacity.

It’s good to be specific about who you would like to handle certain aspects as one of your relatives may be very financially savvy but not so good on the caring side and vice versa.

You can also do a Letter of Wishes where you can be more specific with your requests – Slater and Gordon is one of very few firms who offer this service which is very useful to individuals who want to put more flesh on the bones of an LPA.

A client of mine made a Letter of Wishes which detailed that, should she lose capacity, she still wanted to wear designer clothes and have her hair and nails done once a week. Another said if she went into a care home she would like to be on the top floor overlooking a field. These documents aren’t legally binding – you’re just putting forward what you want to happen and the reasons why.

Many want to avoid talking about what would happen if their life took a turn for the worse, but I believe it’s vital individuals ensure their loved ones are fully informed about the path they wish to take.