On top of the heartbreak and worry that a diagnosis of a life-limiting illness can cause, there will be a raft of concerns and uncertainties about your care and financial affairs, and it can be difficult to know exactly how to prepare from a legal standpoint.
‘There are steps you can take to ensure that your care runs smoothly following a diagnosis,’ says David Roper, a solicitor in the wills and probate team with Lawcomm Solicitors in Whiteley. ‘A health and welfare lasting power of attorney can be an essential part of future care planning for those with a life-limiting illness, alongside other legal tools.’
Considerations for a health and welfare lasting power of attorney
You may make a lasting power of attorney for your health and welfare decisions either alongside a property and financial affairs lasting power of attorney or independently.
If making both types of lasting power of attorney, it is not necessary to appoint the same attorneys for each. What is more important is that you are certain your chosen attorneys have the suitable experience and character to make difficult decisions on your behalf. You should also bear in mind your relationship to them, as well as the nature of your condition, when considering their suitability.
Once you have chosen a suitable attorney, or attorneys, it is important to remember that, under a health and welfare lasting power of attorney they will have the power to make decisions about your care and personal welfare but only if, and to the extent that, you no longer have capacity to make decisions yourself.
Whilst any decisions they make should, ultimately, be in your best interests, they should also consider any specific wishes you have made. It is, therefore, imperative that you communicate openly with your attorneys about the types of decisions you would like them to consider in various circumstances that could arise whilst you have capacity.
Many people prefer to ensure that their views are recorded by including instructions and preferences within their lasting power of attorney. Having your choices written down makes it easier for your attorneys to recall your views and to refer to them as circumstances change over time. You do, however, need to be careful when including instructions and preferences to ensure that these are legally valid.
A health and welfare lasting power of attorney also allows for you to decide who should make any decision about life sustaining treatment if one needs to be made. You may either choose for your attorneys to make this decision or for the medical professional to do so. Either way, your care providers should always discuss the options with your attorneys before a decision is reached. If you leave this decision up to your attorneys, it is vital that you ensure it is a decision they will be comfortable making.
Other advanced care planning
A health and welfare lasting power of attorney will likely be the most valuable part of your legal planning following a diagnosis, But, as its main purpose is to provide your attorneys with authority to deal with your affairs, the opportunity to incorporate your own views and wishes is somewhat limited.
Advanced Care Plan
In addition to your lasting power of attorney, an advanced care plan allows you to set out in greater detail your personal choices regarding the care and treatment you should receive. Typically, this is prepared with the help of your care providers and is essentially a written document which sets out your choices. Those choices can include anything from a specific care home in which you wish to live to dietary requirements or personal care, such as haircuts and manicures. Your advanced care plan should be provided to your attorneys and to anyone involved in your care to ensure that everyone understands your wishes and is working together with the same aims in mind.
When preparing an advanced care plan, you should consider the current and future anticipated effects of your illness, the type of care needed bearing in mind accessibility and affordability, the benefits and risks of different treatments, and the type of care or treatment you are happy to receive. Your advanced care plan should be continually reviewed by you and clearly communicated to your attorneys, family, friends, care providers, and anyone else who plays an important role in your life.
Whilst it is a good idea to set out your wishes in this way, you should avoid being too rigid and you should try to consider as many eventualities as possible and how you would like to be treated in each case. Before writing an advanced care plan, it is always a good idea to obtain legal advice to ensure that your wishes are legally valid and that they do not contradict anything already contained within your lasting power of attorney or any other legal document.
Advance Decisions (“living wills”)
An Advance Decision is a description of your views and beliefs that you wish to be taken into account if health care decisions are being made for you when you no longer have the mental capacity to make those decisions yourself.
Usually, an Advance Decision contains specific directions on the course of action you would or would not like to take if you are in a terminal condition, a permanent coma or in a persistent vegetative state. It may provide instructions on whether or not you wish to receive artificial life support, artificially administered food and water or comfort and care.
In cases where your wishes include refusing life sustaining treatment it must
1, be in writing;
2, include a statement confirming your understanding that you will die as a result of your refusal and;
3, be signed in the presence of an independent witness.
Doctors and healthcare workers must take the wishes expressed in the Advance Decision into account, as they are legally binding under the Mental Capacity Act, and doctors who carry out treatment contrary to the wishes expressed in an Advance Decision will in most cases be acting unlawfully.
It is important for a person with an Advance Decision to supply a copy to their GP and/or any hospital medical personnel involved in their care and treatment for inclusion in their medical records, and to their carers or family members.
If you already have a lasting power of attorney, or execute one later when you already have an Advance Decision, you should consider how the two will work together. If you have an Advance Decision and you make a later lasting power of attorney authorising your Attorneys to make decisions regarding life sustaining treatment then the Advance Decision will be revoked. Your Attorneys will decide. If you have a valid lasting power of attorney and then make an Advance Decision the Advance Decision will override the lasting power of attorney provided that it is valid and applicable to the specific treatment or circumstances at hand.
An Advance Decision cannot be used to give effect to an unlawful act, such as euthanasia, an act which is a deliberate intervention with the express aim of ending life.
Will considerations
Putting plans in place for the remainder of your lifetime will, naturally, be your key priority but the diagnosis of a life-limiting illness may also prompt you to consider your will and any wishes related to your death.
If you have not already made a will, you should think about who you would like to benefit from your estate after your passing. If you already have a will, it is important to revisit this to ensure that it remains in line with your wishes. If you are in any doubt about whether your current will is still suitable, you should seek legal advice to either ensure that you are entirely satisfied with the terms or to make a new will to reflect your current wishes.
How can we help?
If you are struggling to know how to prepare yourself legally following the diagnosis of a life-limiting illness, our solicitors can advise you on all aspects of your legal planning.
For further information, please contact David Roper in the wills and probate team on 01489 864137 or email david.roper@lawcomm.co.uk.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
