Lasting power of attorney for health and welfare

A Lasting Power of Attorney (LPA) allows you to give a person you trust the legal power to make decisions on your behalf in case you later become unable to make decisions for yourself.

The person who makes the LPA is known as the ‘donor’ and the person who is given the authority to make decisions on your behalf is known as the ‘attorney’.

There are two different types of LPA:

• Property and financial affairs covers decisions about money and property; and
• Health and welfare covers decisions about health and personal welfare.

Dementia is one the of UK’s biggest health concerns, with an estimated 13 million people at risk of mental incapacity that have not made adequate legal provision for their future care. Additionally, one in six people living in the UK will suffer a stroke in their lifetime which can result in permanent or temporary loss of mental capacity within minutes.

If you lost the capacity to manage your affairs a LPA for health and welfare would cover decisions about your personal care. These decisions can include choosing a home care company or residential retirement living, arranging meals, choosing what clothes to wear and even what social activities you are involved in. The LPA for health and welfare also covers medical and palliative care, such as the decision to refuse or accept medical treatment and decisions about life-sustaining treatment and end-of-life care.

You can choose to appoint as many attorneys or replacement attorneys as you wish and decide whether you want those attorneys to act jointly, meaning all attorneys make decisions together, or jointly and severally, meaning that any one of your attorneys can make decisions. A joint and several appointment is generally recommended because of its flexibility to allow attorneys to act alone if their co-attorney is temporarily or permanently unavailable.

You can also choose to tell your attorneys how you would prefer them to make decisions. For example, you may wish state a preference to continue living close to family or pets, to take generic medicines where possible, to encourage regular exercise, to only eat vegetarian food or to prevent doctors administering blood products for religious purposes.

It is important to note that the LPA for health and welfare can only be used by your attorney once you have lost mental capacity. Therefore, you remain in control of your decisions until you are deemed unable to make them yourself. You are allowed by law, to make unwise decisions about your health or welfare provided that you understand the consequences of taking that decision.

Moreover, it is a common misconception that once you lose mental capacity your spouse or next of kin becomes entitled to make decisions about your personal health. Unfortunately this is not the case and loved ones can only make these decisions if a registered LPA for health and welfare is in place.

If you lose capacity and do not have a LPA for health and welfare in place, someone will need to apply to the Court of Protection to be appointed as deputy to make decisions on your behalf. This is an onerous process which is expensive and can cause considerable delays at a time when your daily care and medical needs may require immediate attention.

The Court of Protection may request a report from social services as supplementary evidence to the application or it could be rejected entirely. Additional fees are involved where the case requires a hearing because someone objected to the application, for example, where family members disagree about the type of care you should receive. You should also consider that your assets may be frozen (including joint accounts) until such time as authority is granted by the Court, which can cause problems if you have impending bills or care fees that need to be paid.

Once the deputyship is granted the deputy has obligations to submit an annual report explaining the decisions they have made as deputy and to keep copies of all receipts, statements and letters. The deputy will also be supervised by the Office of the Public Guardian who are authorised to come visit.

With this in mind, it is undoubtedly a stressful and emotional time for family who may not be prepared for the legal challenges of applying to the Court of Protection for deputyship. You should therefore consider putting in place a LPA for health and welfare which sets out all of your requirements in a single document, ensuring it is set up for when you need it.

Although it is stressful to contemplate your future care, putting in place a LPA for health and welfare now will give you the legal confirmation you require to be suitably looked after by your loved ones in accordance with your personal wishes.

If you would like guidance on the issues raised in this article or would like us to draft and register a LPA for health and welfare for you, please speak to a member of the firm’s Private Client team.