When considering the issue of medical decisions in the event of your incapacity, it is important to recognise the distinction between a living will and a welfare power of attorney. A welfare power of attorney is the Scottish equivalent of a lasting power of attorney. These are two distinct documents, and both have important roles to play.
What is a power of attorney?
A ‘lasting’ power of attorney is an English term. The equivalent in Scotland is a Continuing and Welfare power of attorney. A power of attorney is a deed that you put in place while you have sufficient capacity to do so. The powers continue to have effect in the event of your incapacity; or in some cases, they begin in the event of your incapacity.
A power of attorney enables you to appoint another person (or people) to deal with your financial and/or welfare affairs for you if you are ever unable to do so. You may be unable to deal with your own affairs for a variety of reasons – perhaps because of illness or an accident, or it may be a result of the ageing process.
Granting a power of attorney means that if you can’t manage your affairs, there is someone you trust who can do it for you. This means that your financial and welfare affairs can be looked after. If you become incapacitated and have not granted power of attorney, no one has automatic rights to deal with your affairs. A court order for legal guardianship may have to be applied for, which can be a lengthy and costly process.
Continuing powers are powers relating to your finances and property. Welfare powers are for all health and welfare matters. Welfare powers might include the power to make decisions on your behalf about care services, residential care and medical treatment. Your attorney can only make welfare decisions on your behalf if you lack capacity to make those yourself.
What is a living will?
A living will is a document which seeks in advance to give or refuse consent to future medical or other healthcare treatment. It is not a will in the conventional sense and is also referred to as an “advance medical directive”. It is used during your lifetime, rather than on your death, and it does not deal with any of your items of property. For these reasons, a living will is a separate document from your will. It is also separate from your power of attorney.
Unfortunately, there is no legal authority in Scotland as to whether an advance medical directive refusing treatment is binding in Scotland. There is no legislation regarding this, and the subject of advance medical directives has not yet been brought before a court in Scotland. However, recent cases and legislation in the rest of the UK would suggest that advance medical directives are becoming an accepted way of patients providing their views in advance.
The legislation and case law elsewhere in the UK provides that for a living will to be accepted by a doctor:
- it must have been made at a time when the granter had capacity to do so, and
- the granter sufficiently understood the nature, purpose and effect of the proposed treatment and the probable consequences of refusal.
Additionally, at the time when doctors are considering whether a refusal of treatment is binding upon them, the situation facing the doctors must be within the scope of that refusal.
You should be aware that an advance medical directive cannot be used to demand to be given particular treatment by doctors.
Is this not covered by my power of attorney?
If you have a welfare power of attorney in place, you may feel a living will is not necessary as your welfare attorneys will have powers to make decisions on your behalf about medical treatment (assuming such a power is included within your power of attorney). The living will would, however, document your own opinion on any such treatment. Assuming your living will is accepted by the medical professional, it would allow you to make the particular decision rather than your attorney making it for you.
The distinction is therefore in a living will you are seeking to make the decision in advance yourself; the power of attorney is delegating that decision making to someone else.
A power of attorney is nevertheless extremely useful. The scope of a power of attorney is normally much broader than a living will. Consequently, best practice is to prepare both a power of attorney and a living will, taking care to ensure that the documents do not conflict with one another.
Should you wish to discuss a power of attorney and/or a living will further or put these documents in place, please contact one of our Personal Law solicitors.
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