Welfare Powers of Attorney & Living Wills: Do I need both?

As there is some overlap between Welfare Powers of Attorney (‘WPAs’) and Living Wills (more correctly known as an Advance Medical Directives or ‘AMDs’) the differences between them are not always clear.

An AMD is designed to record our end of life care wishes while we are mentally and physically capable of doing so, often incorporating detailed advance consent to receive or refuse certain medical treatment.

A WPA is similar, but not identical, to an AMD. A WPA enables the attorney to make general decisions regarding matters such as day to day health and welfare, residential care, and whether to accept or refuse medical treatment, in the event of mental incapacity. However an AMD is much more specific than a WPA by defining more precisely the types of treatment we do not consent to receive, and also those that we do.

A Power of Attorney (‘POA’) can also incorporate ‘Continuing’ powers to authorise attorneys to deal with financial matters. Unlike financial powers, welfare powers will only come into effect once the Granter loses capacity.

It is usual to appoint a representative (‘Proxy’) in an AMD to accept or reject treatment on your behalf. The main function of a Proxy is to interpret and communicate your wishes, as set out in your AMD, to your doctor, and he or she will not have the same extensive powers of an Attorney under a WPA.

Ideally your Proxy should be the same person as your Welfare Attorney, given that in Scotland AMDs are not legally enforceable in the way that WPAs are. However both the Law Society and the British Medical Association have acknowledged that, wherever possible, a person’s wishes recorded in an AMD ought to be taken into account in deciding on a patient’s best interests.

As a WPA becomes a public document once it is registered with the Office of the Public Guardian, which it must be if it is to be acted upon, many people prefer to record their detailed end of life care wishes in a more private AMD. Of course your doctor will need to have access to your AMD if your wishes are to be taken into consideration, although it is essentially a document to which far fewer people will have access.

As medical science is advancing constantly and rapidly it is most important that you discuss any proposed AMD with your doctor before signing it, and also keep it under regular review.

If you have any queries regarding the issues referred to in this article please contact our Private Client Department.

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