Living Wills: Advance Decisions v Health & Welfare LPAs. What is the Difference and which should you choose?

Most of us plan for the things we expect: retirement, a house move, a child starting school. Planning for the unexpected is harder, because nobody wants to imagine a sudden accident or illness that leaves them unable to make their own decisions. Yet that is exactly when having a pre-existing plan in place matters most.

Deciding now who you would want to speak for you if the worst were to happen, and what you would want them to know, is a practical step that protects you and spares the people closest to you from guessing at the hardest moment. Considering whether to set up an advance decision or a health and welfare LPA is not about expecting the worst. It is about making sure that if the unexpected does happen, the right people and documents are ready and your wishes are known.

For most people, a health and welfare lasting power of attorney (LPA) is the stronger choice, but you should consider both before deciding which is the best for you.

What is an advance decision?

An advance decision (sometimes called a living will) is a document recording your decision to refuse certain medical treatments in the future and takes effect if you later lose the mental capacity to make decisions yourself.

If you feel strongly you would not want to be kept alive if your health deteriorated, recording that decision in an advance decision can be a powerful tool. It is a snapshot in time of your wishes: you yourself are making decisions ahead of time to refuse treatment in certain circumstances, setting out that decision in writing so it is clearly laid out for future medical professionals to see. Its strength lies in the clarity and reassurance it gives you in knowing you yourself are deciding your future care.

But an advance decision does have its limitations. It can only say no to treatment, it cannot ask for treatment, it cannot weigh up new information nor adapt to new circumstances. It will not apply if the treatment or circumstances described in the document do not match what happens. It cannot appoint anyone to speak for you: your family and friends may know the contents of your advance decision, but that does not give them any legal authority to stand up for your wishes. It may also be set aside if there are reasonable grounds to believe you may have changed your mind. For example, if the advance decision was made some time ago, without being updated, or if treatment options have improved in the years since, your wishes could be discounted. Therefore, to ensure it applies if and when the time comes, ideally it should be regularly checked and updated. Even then, decisions you make ahead of time may not fit the particular circumstances that you find yourself in.

What is a health and welfare LPA?

A health and welfare LPA is a document by which you choose one or more people (your attorneys) to make decisions in the future about your health and care if you were to lose mental capacity. Unlike an advance decision, you are not making decisions now about treatment in the future that may or may not arise. Instead, you are naming your attorneys and authorising them to make decisions on your behalf in the future no matter the circumstances, if you were unable.

It is a much broader tool than an advance decision: it is not just about refusing treatment in certain limited circumstances. It can cover day-to-day care, where you live, what care you receive and other medical treatment. If you want your attorneys to be able to refuse treatment, you can also give your attorneys the power to accept or refuse life-sustaining treatment on your behalf.

If you were to lose mental capacity, a health and welfare LPA is flexible. No decisions are made now, instead your attorneys can adapt to whatever the circumstances are and make decisions about your care in the future, considering all the information available at the time including what your needs are then, the available treatments and most importantly the wishes you have expressed to them or have included in the terms of the LPA.

Why a health and welfare LPA is usually the better choice

It adapts to what actually happens. An advance decision is written at one moment and may be applied years later. Medicine changes, and so do your circumstances. An attorney can weigh your known values against the real situation, which no document can fully predict.

It avoids the “does this apply?” problem. An advance decision only works if the treatment and circumstances match what you wrote. If clinicians are unsure it applies, it can be challenged or set aside. An attorney can talk to the medical team in real time and make a decision that fits.

It covers far more than treatment. Care at home or in a care home, daily routines and where you live all sit outside an advance decision. A health and welfare LPA can cover them.

It gives you a voice, not just a refusal. An advance decision can only say no. An attorney can say yes to treatment you would have wanted, as well as no to treatment you would have refused.

It can still carry your firm wishes. You can write instructions and preferences into the LPA, and you can expressly allow or forbid decisions about life-sustaining treatment. The LPA then holds your wishes and a decision-maker who knows you.

It doesn’t need to be updated. An advance decision made years ago could well be discounted if it is believed that your wishes might have changed or treatment options have improved. An LPA once created remains valid until your death, unless you revoke it or your attorneys can no longer act.

One honest caveat: an LPA places a heavy responsibility on the people you choose. Some people are uncomfortable putting family or friends in that position, and that is a fair reason to prefer an advance decision.

When an advance decision still has a place

An advance decision is not worthless, and the choice is not either/or. You can have both, but timing matters.

If you make an LPA after an advance decision, and the LPA gives your attorney authority over the same treatment, the advance decision becomes invalid. If you make an advance decision after the LPA, your attorney has to follow it for that treatment.

An advance decision can be the right tool if you have a clear, specific refusal in mind, such as a particular treatment in a particular situation, and you want it recorded in your own words. It can also suit people who have no one they would want to appoint.

If you hold both, make sure they do not conflict. Review them together, ideally with a solicitor, so your attorney and your doctors are not left guessing.

What we recommend

We recommend that you start by considering who you would trust to make decisions on your behalf, both about your health and welfare and about your property and finances. Then read our guidance on both types of LPA (property and financial LPA and health and welfare LPA) and decide whether you want either or both. If you have close family or friends who you trust to look after you into the future, it is usually sensible to have both. When you are ready, set up your LPAs through us. Our system guides you through the process, asking some simple questions and making suggestions, so you can be sure they are drawn up correctly, reflect your wishes and are registered without delay.

Frequently asked questions

Is a living will the same as an advance decision?

Yes. In England and Wales, “living will” is the everyday name for an advance decision to refuse treatment. The law, in sections 24 to 26 of the Mental Capacity Act 2005, calls it an advance decision. See what a living will is.

Can I have both an advance decision and a health and welfare LPA?

Yes, but the order matters. If you make the LPA after the advance decision, and the LPA gives your attorneys authority over the same treatment, the advance decision is no longer valid. If you make the advance decision after the LPA, your attorneys must follow it.

Can a health and welfare LPA refuse life-sustaining treatment?

Only if you say so in the LPA. Your attorneys can accept or refuse life-sustaining treatment on your behalf only if the document gives them that power expressly.

Which is better, an advance decision or a health and welfare LPA?

For most people, a health and welfare LPA, because the people you choose can respond to what actually happens and cover far more than treatment. An advance decision can still suit someone with a clear, specific refusal in mind, or with nobody they would want to appoint.

This article is for general information and is not legal or medical advice. If you are thinking about refusing treatment in advance, please talk to your doctor, and take legal advice on how an advance decision and an LPA fit together.

Sources

• Mental Capacity Act 2005, section 24 on legislation.gov.uk. What an advance decision is, and withdrawing it.
• Mental Capacity Act 2005, section 25 on legislation.gov.uk. When an advance decision is not valid or does not apply, including a later LPA.
• Mental Capacity Act 2005, section 26 on legislation.gov.uk. The effect of an advance decision.
• Mental Capacity Act 2005, section 11 on legislation.gov.uk. A health and welfare LPA is subject to advance decisions, and life-sustaining treatment needs express provision.
• Mental Capacity Act 2005, section 13 on legislation.gov.uk. When an LPA ends.
• Advance decision to refuse treatment (living will), NHS
• LP12: make and register your lasting power of attorney, a guide, GOV.UK