In an uncertain world, preparing for the future is more than just about managing your finances or estate planning; it involves making sure your personal welfare is looked after in the way you wish, especially when you might not be able to make those decisions yourself. One critical tool for ensuring this is a Lasting Power of Attorney for health and welfare. Here’s what you need to know about it.

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a legal document, with statutory authority under the Mental Capacity Act 2005, that allows an individual, known as the ‘donor,’ to appoint one or more ‘attorneys’ to make decisions on their behalf. This appointment can become active when the donor is no longer mentally capable of making decisions independently. There are two types of LPA: one for financial decisions and one for health and welfare decisions.

This article focuses on the LPA for health and welfare, which covers decisions about medical care, daily routine, living arrangements, and life-sustaining treatment. It is only effective when the donor has lost mental capacity.

Why is it Important?

An LPA for health and welfare is essential because it ensures that the people who understand your preferences and care about your well-being are the ones making critical decisions if you’re unable to do so. Without an LPA, these decisions might be left to medical professionals or court-appointed deputies who may not know your personal beliefs and wishes.

Understanding your preferences and care choices is more than just giving consent or refusal to medical and welfare matters.  Your attorney needs to try and make the decision you would make yourself about the matter, if you had capacity at the time the decision is needed.  Your attorney should be able to exercise what they believe is your choice, even though may not what they would choose for themselves if they were in the same position.

Choosing an attorney is critical and you should not feel that someone is more entitled to be your attorney because they are family or a partner.  If a serious medical treatment decision needs to be made, you need to be satisfied that your attorney will consider your wishes and feelings and personal values and beliefs, even if those conflict with their own.  Someone who loves you very much may not be able to feel that they can ‘let you go’ by refusing medical treatment, even if that were what you would want in that situation. 

The Scope of Health and Welfare Decisions

The scope of the decisions that your attorney may be required to make is wide.  They range from what you might wear on a particular day to whether to consent to or refuse medical treatment that may otherwise keep you alive.

Medical Treatment: Decisions about medical care, including the need for surgery, medical procedures, medication regimes, and other treatments. This also encompasses the power to give or refuse consent to life-sustaining treatment if specifically granted in the LPA.

Living Arrangements: Choosing where you will live, such as selecting a suitable residential care home or arranging for you to remain in their home with support. This also includes decisions about moving to a new location if it better suits your health and welfare needs.

Daily Routine: Decisions about your day-to-day routine, including diet, dress, and participation in social activities. This can also include managing personal correspondence and keeping up with hobbies and interests to ensure you a good quality of life.

Personal Care: Oversight of your personal care, including bathing, grooming, and other elements of personal hygiene. This is especially important if you have specific needs due to physical or mental health conditions.

Social Interaction: Decisions regarding social activities and maintaining personal or family relationships. An attorney might arrange visits, manage social outings, and interact with other professionals involved in your care.

Access to Professional Services: Arranging for you to receive professional services such as physiotherapy, occupational therapy, or counselling. This includes liaising with health care professionals to ensure you receive all necessary support.

End-of-Life Care: Making decisions about palliative care and end-of-life treatments, including where you would prefer to spend their last days and the nature of such care, reflecting your wishes and values.

How Does It Work?

To create an LPA, you must be 18 years or older and have the mental capacity to make your own decisions at the time of making the LPA. The process involves choosing an attorney and outlining the extent of decisions you authorize them to make. As mentioned, choice of attorney is the key decision.  It is crucial to choose someone you trust, and who you think will advocate for your wishes, feelings, values, and beliefs, as they will be acting in your best interests.

The LPA must be registered with the Office of the Public Guardian before it can be used, and we recommend that this is done as soon as the LPA has been fully executed, even if you still have mental capacity to make your own health and welfare decisions at that time. This process ensures that the LPA is correctly set up and ready to use when necessary, avoiding delays when it becomes urgently needed.  It can take three months or more to register the LPA, and if the attorney needs to act under it, time will be of the essence.

Legal Safeguards

The Mental Capacity Act 2005 puts some safeguards in place to protect donors when setting up an LPA. One of these is the requirement that the LPA must be certified by a qualified person (often a solicitor or doctor) who confirms that the donor (1) understands the nature and scope of the LPA, and (2) is not under any pressure to create it, and (3) there was nothing else which would prevent the lasting power of attorney from being created by the instrument.  LPAs have been cancelled by courts after legal challenges by third parties because the certificate provider has not taken steps to satisfy themselves of those three requirements.

Attorneys are legally required to follow the Mental Capacity Act’s guiding principles, ensuring that they always act in the donor’s best interests and consider the donor’s past and present wishes as much as possible.

Conclusion

Setting up a Lasting Power of Attorney for health and welfare is an essential step in managing your future welfare. It not only gives you peace of mind but also provides clear guidance and authority to those you trust to look after your interests. As you consider this important decision, it is advisable to consult with a solicitor specializing in Care and Capacity for adults to ensure that the LPA is correctly drafted and reflects your wishes accurately.  Your solicitor can advise you about any restrictions on your attorney’s power that you might want to consider and help you to decide who will be best placed to act as your attorney.

​How we can help

If you are contemplating making or receiving a family loan, our team can also advise on various methods to assist with protecting these resources as much as possible in the event of a subsequent divorce.

You can also complete an online enquiry form. One of the Wollens team will contact you as soon as they are available.