Advance Decision vs LPA: Which Takes Priority in England?

An advance decision to refuse treatment (ADRT) and a health and welfare LPA both deal with medical decisions when someone loses capacity. They can directly contradict each other — the advance decision says "refuse this treatment" while the attorney under the LPA says "accept it." The Mental Capacity Act 2005 resolves this conflict with a simple rule based on timing.

The Date Rule: Whichever Was Made Later Takes Priority

If the ADRT was made before the health and welfare LPA, and the LPA gives the attorney authority over the same treatment decisions, the LPA overrides the advance decision. The law treats the later document as the donor's most recent expression of their wishes.

If the ADRT was made after the health and welfare LPA, the advance decision stands and the attorney cannot override it for the treatments it covers. The attorney still has authority over any medical decisions not addressed by the advance decision.

This means the order of execution matters enormously. A donor who makes an ADRT refusing life-sustaining treatment, then later creates a health and welfare LPA granting the attorney power over life-sustaining treatment, has effectively given the attorney the ability to consent to treatment the donor previously refused.

Life-Sustaining Treatment Has Extra Requirements

For an advance decision to refuse life-sustaining treatment to be legally binding, it must be in writing, signed by the donor, signed by a witness, and include a specific statement that the decision applies even if the donor's life is at risk. If any of these formalities are missing, the advance decision is not valid for life-sustaining treatment — though it may still carry weight as evidence of the donor's wishes.

A health and welfare LPA only covers life-sustaining treatment if the donor specifically ticked the relevant option in the LPA form (Section 5 of LP1H). If that box was not ticked, the attorney has no authority over life-sustaining treatment, and a valid ADRT covering that treatment applies regardless of which document came first.

How Hospitals Handle the Conflict in Practice

NHS clinicians assess the validity and applicability of an ADRT before following it. They check whether the advance decision is valid (not withdrawn, not overridden by a later LPA), whether it applies to the specific treatment and circumstances in question, and whether the donor had capacity when they made it.

If there is any doubt — and in emergency situations there often is — clinicians will provide treatment to preserve life while the legal position is clarified. The attorney under a health and welfare LPA can be consulted as part of this process, but cannot override a valid, applicable ADRT that was made after the LPA.

Getting the Documents to Work Together

The safest approach is to make both documents, in the right order, with consistent language. Most families execute the advance decision first, covering specific treatments the donor is certain they want to refuse, and then create the health and welfare LPA afterwards with a clear note in Section 7 that the attorney should respect the donor's advance decision unless circumstances have materially changed.

This gives the attorney flexibility while preserving the donor's core wishes. The attorney's job becomes interpreting the donor's values in situations the advance decision did not anticipate, rather than overriding specific refusals the donor took the time to put in writing.

The Lasting Power of Attorney guide includes a side-by-side comparison of how these instruments interact, along with Section 7 wording examples that coordinate an LPA with an existing advance decision.

See more England guides →