Professor Jo Samanta, De Montfort University
Advance decisions and Welfare LPAs: belt and braces for advance care planning?
Recognised asymmetries exist between anticipatory and contemporaneous decision making in end of life care. In effect, this means that the legal and moral authority of advance decisions to refuse treatment can be undermined and not result in the desired effect. One potential solution might be to instruct a health and welfare attorney as an adjuvant to an advance care plan. Health and welfare lasting powers of attorneys (LPAs) were introduced by the Mental Capacity Act 2005 and for the first time in England permit substituted decision-making for medical treatment for adults who lack capacity to consent. These require compliance with a range of technicalities formalities and require attestation by a certificate provider. Although they offer potential advantages over advance refusals of treatment they are underpinned by a different ethical premise which brings with it its own notable challenges.
This paper considers the possible benefits of welfare LPAs as a mechanism for surrogate decision-making at end of life. It also considers some of the key potential and actual challenges that might arise in this context. Ultimately, it carries a positive message that these can be a useful way to plan for possible incapacity at the end of life.