The recent publication of the Terminally Ill Adults (End of Life) Bill into parliament has drawn sharp focus on the public mood on assisted dying and the importance of having the choice about how you die in the event of a terminal diagnosis.
The End-of-Life Bill, if it becomes law, will assist those who have full capacity to make such a decision, but there are many people who lose capacity to make decisions and whose final days, months, or years do not reflect what their wishes and feelings would have been had they been able to make decisions.
This also raises the very serious question of what happens to those individuals who have no terminal diagnosis but who have, or develop, dementia, or are otherwise mentally incapable of exercising their personal choices about their care and treatment in the future.
The solution to this question: Make a Health and Welfare Lasting Power of Attorney.
It is a common misconception that should someone lack the capacity (either temporarily or permanently) to make decisions relating to health and welfare issues, their spouse or close family will automatically have the right to make those decisions on their behalf. This is not the case, and even if they are consulted, it is not always desirable. A best interest decision should be made to determine what is in that person’s best interests, and it should take into account the views of family members but, in reality, this does not always happen. There may be a dispute between family members about what is in your best interests, or there may be a conflict between your interests and theirs.
More and more, social services ask, when faced with a person lacking capacity to make decisions “Is there a health and welfare LPA appointing someone to make the decision?” If not, social services or doctors will often be the decision maker, and they will try to determine from what they know of the person what might be in their best interests. They may have too little information to go on and make decisions which are incompatible with your own wishes and feelings because they cannot determine otherwise.
Preparing a health and welfare power of attorney when you have the capacity to do so, can ensure that your wishes and feelings are respected should you lack the capacity to indicate those. It gives you a voice when you are unable to speak up for yourself.
How can it help me?
The sorts of decisions that health and welfare attorneys could make:
Life Sustaining Treatment decisions – you can give your attorneys the right to give or refuse consent to life sustaining treatment. Your attorneys can ensure that your preferences regarding life-sustaining treatments, such as whether you want to be resuscitated or receive life support, are followed.
Pain management – your attorneys make decisions about pain relief and other treatments to help you stay comfortable, taking into account your wishes and any medical advice.
Accommodation and care needs – Your attorney can help chose, with assistance from social services if they are involved, an appropriate care home that aligns with your preferences. If you prefer to stay at home, where possible and safe, your attorney can help organise home care services that meet your needs, ensuring you are not left without necessary support.
Nutrition and Hydration Choices – In cases where you’re unable to decide about food or hydration, the attorney can make sure that your preferences (e.g., dietary restrictions or preferences for certain types of food) are honoured, and that you are cared for in a way that prioritises your comfort.
Mental and emotional wellbeing – If you experience mental health challenges or emotional distress, your attorney can ensure that any decisions regarding psychological care or support are made in a way that considers your comfort. This could include ensuring you have the emotional and spiritual support you require and managing any mental health treatments you have expressed a preference for.
Spiritual and religious care – If you have specific spiritual or religious needs, your attorney can ensure that those needs are met, arranging visits from clergy, religious services, or other practices that would comfort you in your final days.
Ensuring your wishes and feelings are followed – Your attorney is legally bound to act in your best interests, but more importantly, if you have already communicated your preferences (in a Lasting Power of Attorney or in an advance directive or through discussions), they can make sure those wishes are respected.
Minimising family conflict – Having a designated person or people with decision-making authority can help minimize family disputes. In emotionally charged situations, such as end-of-life care, there can be disagreements among family members. An LPA provides clarity, ensuring that your wishes are respected, which can ease the strain on family members and ensure you receive care in line with your desires.
A health and welfare Lasting Power of Attorney can provide peace of mind to you and your loved ones and seeking the correct legal support from care and protection specialists will ensure that your wishes and feelings are worded in the correct way and entered into your health and welfare LPA.
How can we help ?
If you are struggling with making a best interest decision or you wish to understand the law in this area a little more clearly, our solicitors can help. If you have concerns about the actions of another attorney, or any decision they have made, our litigation team can assist.
For further information, please contact Iain Douglas in our Wills and probate team call 01803 225195 or email [email protected]
Iain Douglas, Legal Executive
Our specialist team are here to help – if you need assistance please contact Iain or email [email protected]
