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Which takes priority, an LPA or an advance decision?

View profile for Susie Fogo
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Lasting Powers of Attorney (LPA) and advance decisions give authority to others to make decisions about your care on your behalf, should you need this help in the future.

Both documents are for use in the event that you become unable to make decisions for yourself. They can be executed before you need assistance, so that they are ready to be used, should the time come.

Lasting Power of Attorney

You can make an LPA in respect of your financial affairs or your health and welfare. It will give your chosen attorney or attorneys the authority to make decisions about your daily routine, where you will live, to include whether you should move to a care home, and your medical care. If you wish, you can also give them the power to say whether or not you should have life-sustaining medical treatment. 

Without an LPA, your family would not have an automatic right to make decisions on your behalf. This can cause difficulties if they feel that they need to step in to make choices for you and could even result in disagreements. It might mean that someone has to make an application to the Court of Protection to be appointed as your deputy, which is a more complicated process than registering a Lasting Power of Attorney and is also more time-consuming.

Advance Decision

An advance decision, also referred to as a living Will or an ADRT (advance decision to refuse treatment) allows you to decide in advance if there is any type of medical treatment that you do not want in the future.

It means that everyone, including your medical team and your family, will know what your wishes are and disagreements and misunderstandings can be avoided. It also means that you can choose what you want to happen in the future, should you need medical care.

You can if you wish decide to refuse treatment that could potentially sustain your life, to include ventilation, CPR and antibiotics.

An advance decision cannot be used to ask for your life to be ended or to refuse food and drink by mouth or basic care. You cannot ask someone else to decide your treatments on your behalf – an LPA should be used for this.

Order of priority

You can make both an LPA and an advance decision. Wherever possible, you should ensure that your wishes do not conflict. Whichever you made most recently will take priority over the other.

This means that if you made an advance decision then you later register a health and welfare LPA, your attorney under the LPA will be able to overrule your advance decision if you have given them the authority in respect of a particular decision.

Your attorney will always be required to act in your best interests, and this will include taking into account any expression of wishes you may have made in the past. You can tell your attorney about your advance decision and give them a copy.

If you make an advance decision after registering an LPA then your attorney will not be able to override anything it contains.

If you would like to speak to one of our expert LPA lawyers, contact our Farnham office on 01252 733770 or online.

This information is for guidance only and should not be regarded as a substitute for taking full legal advice on specific facts and circumstances.

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