The Difference Between Advance Decisions and Health and Welfare LPAs

By Laura Hartley

Senior Associate

An advance decision is a refusal for medical treatment made by the patient. The advance decision does not have to be in the patient’s best interest, so the patient can refuse treatment that a doctor considers is in the patient’s best interests to have. A doctor is unable to go against a valid and applicable advance decision.

A Lasting Power of Attorney for health and welfare decisions allows an attorney to give or refuse consent to life sustaining treatment, which is in the donor’s best interest. This means the attorney can refuse consent to treatment that brings about the donor’s death.

If both documents exist, care must be taken to ensure that there is no conflict.

If a Lasting Power of Attorney is registered after the advance decision, and has not excluded decisions that are covered by the advance decision, the Lasting Power of Attorney will take precedent. The advance decision is then no longer valid and so is merely a document to be taken into account by the attorney when making a best interests decision.

This may not be the donor’s wishes. To ensure that the advance decision is valid, the Lasting Power of Attorney should be drafted carefully to exclude decisions covered by the advance decision.