Advance Directives & Third Party Mandates – The Alternatives To Lasting Powers Of Attorney (LPA)

In recent years, there has been an increase in the number of people wanting to make and amend Wills. Additionally, we have also seen an increase in the number of people enquiring about making Lasting Powers of Attorney (LPAs).

With people looking to get their affairs in order, we will consider the alternatives to LPAs and what these options do and don’t cover.

What is a LPA?

An LPA is a legal document in which the person making it (the ‘donor’) appoints one or more people chosen by them to act as their ‘attorneys’. The donor will continue to make their own decisions while they’re able but if they lose capacity. For example, because of an accident or illness, their attorneys can step in to act on their behalf.

There are two types of LPA – health and welfare, and property and financial affairs.

Alternatives to LPAs

LPAs can take up to 12 weeks to complete, because of the time it takes to register these with the Court of Protection, so in situations where an LPA isn’t practical, it’s important people understand that there are other alternatives available to them, which can be put in place much more quickly as if they do become seriously ill, their capacity to make decisions could be impaired within a matter of days.

Third-party mandates

A third-party mandate is an arrangement that you make with your bank or building society, so you just need to get in touch directly with them and follow their processes.

However, it’s crucial to know that if you then lose the mental capacity to make decisions in the future, the authority of the person you’ve appointed to act for you under the mandate ends automatically as a matter of law. In which case, a property and financial affairs LPA would be required to be in place.

Advance directives

An advance directive (sometimes known as a Living Will) sets out your advance decision to refuse the giving or continuing of specific medical treatment if you were to be unable to make that decision for yourself at the time in the future when the treatment is required. For example, nothing more than making you comfortable if you were suffering from an illness you would not recover from.

You should instruct your solicitor to draw the documentation up as there are technical requirements as to form and content for it to be legally binding. Provided the advance directive is properly drawn up and doesn’t include decisions that are not permitted, it is legally binding on the medical professionals treating you in the future.

However, an advance directive does have its limitations. You cannot, for example, use an advance directive to refuse future basic care (i.e. being made or kept comfortable and free from pain) but, providing the correct wording is used, you can refuse life-sustaining treatment.

The main advantage of an advance directive is that it’s effective as soon as it’s made and does not need to be registered before it can be used. They’re particularly useful for people who have a terminal or degenerative illness or particular beliefs (be they personal or religious) that are relevant to their medical treatment.

The differences between advance directives and LPAs

A health and welfare LPA differs from an advance directive in that you’re appointing the people you choose to act as your attorneys to be able to make decisions about your health in the future should you not be able to make the decision yourself.

In an LPA, you must specify whether or not you want your attorneys to be able to make decisions for you about whether or not you should receive life-sustaining medical treatment. You can also include wishes and/or instructions regarding your future health, welfare and medical treatment.

You can have in place either an advance directive or a health and welfare LPA or both at the same time. But if you want to have both in place, it’s crucial you ensure they don’t conflict with each other and, usually, the LPA should be made first to avoid the advance directive being invalidated.

Act now

These documents should be made when you are fit and healthy as part of putting your affairs in order.

It’s also worth noting that only a health and welfare LPA gives your attorneys the authority to make decisions regarding your health or medical treatment – a property and financial affairs LPA does not cover this. We always tell clients that we hope they’ll never have to use their LPAs, but if they do, they are crucial when it comes to making life easier for both the client and their family at what is already a very stressful time.