22 September 2021

In our last blog we discussed why it is important to make a Will if you are starting a family. In the second part of this blog series we consider Powers of Attorney and Living Wills and why these are similarly important.

Making the decision to bring a child into the world is an exciting journey, but there are inherent health risks involved, particularly with certain types of fertility treatment such as assisted and donor conception. Although one would hope the health risks wouldn’t come to fruition, these risks could result in you losing capacity and requiring someone to make decisions on your behalf. If you put a Power of Attorney in place, this will give you peace of mind to know that, should the unthinkable happen and you end up incapacitated, you have appointed someone you trust to make important decisions for you.  Likewise, having a Living Will in place gives you peace of mind that a declaration as to your wishes is available to those involved in making decisions about your medical care, should you be unable to make decisions for yourself.

Why do I need a Power of Attorney

A Power of Attorney is a legal document which, once signed and registered with the Office of the Public Guardian, enables an individual to act on your behalf and manage your affairs, once you have lost the ability to do so.  Powers of Attorney can be granted by you in respect of your financial affairs, your welfare or both.

If in the future you were to become incapable of managing your affairs and you had not granted a Power of Attorney, it would be necessary for an application to be made to the Court to appoint a Guardian.  This is a very time consuming and expensive process. We recently considered Scottish Guardianship, its disadvantages and its US counterpart Conservatorship in our recent blog concerning the ‘Free Britney’ movement (available here).

If you were to lose your capacity due to one of the health risks associated with pregnancy or fertility treatment occurring, a Power of Attorney would mean that people who you have chosen and who you trust will be responsible for your important decisions. 

This is especially important if you are agreeing to act as a Surrogate. If something were to happen to you, you will want to make sure that someone you trust is in charge of making decisions for both you and the baby.

Why do I need a Living Will?

A Living Will is a document which outlines your wishes as regards certain medical treatments. In particular, which situations you may wish to refuse medical treatment.

Whilst these are not legally binding, Living Wills are often of great assistance to those who have involvement in taking decisions regarding your medical care, as they constitute a detailed statement of your wishes. If difficult decisions require to be made and you are not able to communicate a decision, Living Wills can be of invaluable guidance.

For example, people may wish to include declarations as to what they wish to happen should they develop conditions such as advanced dementia, advanced malignant disease (such as cancer), severe immune deficiency or brain injury.    The declarations may include a wish to not be subjected to life sustaining treatment such as life support systems where the individual is suffering from any of these conditions.

The declarations can be very bespoke and can include a variety of conditions and a variety of different types of declarations. 

Additionally as far as fertility and pregnancy matters are concerned, you may wish to include a pregnancy waiver (or non-waiver) which would set out your wishes should you be pregnant at the time the decision is made. Some may wish their Living Will to be temporarily overruled should they be pregnant with a child likely to survive to the stage of birth and others may wish to declare that the Living Will applies, in spite of pregnancy.

Peace of mind for you and your family

Having a Power of Attorney prepared prior to beginning your fertility journey would allow you to have peace of mind that, should the unthinkable happen and you lose capacity in the middle of your journey, an individual you trust is appointed to manage your affairs.  A Living Will complements this by giving guidance to those responsible for your medical care.

If you would like further advice or assistance in relation to the matters discussed in this article, please do not hesitate to contact our experienced Private Client and Family Law Teams at BTO, who would be delighted to assist you to prepare a Power of Attorney and Living Will for you.

Have a specific question that we can help you with? We offer a free Fertility Law Advice Service for prospective clients. Just send us an email at fertilitylaw@bto.co.uk and once of our specialist fertility solicitors will respond to your query within 7 days.

Charlotte Fleming, Solicitor cfl@bto.co.uk / 0141 221 8012

Beverley Addison, Senior Solicitor ske@bto.co.uk / 0131 222 2939