In the event that any of us lost the mental capacity to make our own decisions, either through illness or accident, we would all want someone we trusted implicitly to make any important decisions on our behalf, not least in respect of our future care.
By creating a Lasting Power of Attorney you can feel confident that any decisions in respect of your health and welfare, if and when the need ever arises, will be made by those you trust the most.
What is a Health and Welfare LPA?
A Health and Welfare LPA refers to the appointment of another person, or persons, to make decisions about your personal wellbeing and healthcare in circumstances where you are no longer able to do so yourself.
In other words, it gives the appointed person(s) the legal authority to act for you in relation to the following types of matters:
What your daily care routine will be, such as your diet or dressing
Where you will live, for example, whether moving into a care home is best for you, or whether you should continue to live at home with help from social services
What care and treatment you will receive, including whether you should receive life-sustaining medical intervention.
You can also create a separate Lasting Power of Attorney in respect of your property and financial affairs. Typically, many people elect to create both types of LPA, often with different attorneys to make these different types of decisions.
Who should I appoint under a Health and Welfare LPA?
Given the potential significance of any decisions to be made under a Health and Welfare LPA, you should think very carefully about who you choose to appoint to act on your behalf. It is possible, however, to appoint more than one person to act as an attorney.
It is also possible to elect that your appointed attorneys make decisions either jointly or independently. In this way, you can make written provision that any life-changing decisions cannot be taken by any one single individual.
In your choice of attorney(s) you may chose to appoint a trusted family member or close friend, although they must be at least 18 and have the mental capacity to make their own decisions.
Further, you should always discuss the proposed appointment with them first, just to make sure they are comfortable with the potential decisions you will be asking them to make.
Can I limit the scope of power under a Health and Welfare LPA?
Under a Health and Welfare LPA you can grant an attorney either a general or limited power. In some cases, you may want to restrict the power of a certain individual to specific tasks, for example, your day-to-day care, reserving any decisions about your long-term care to others, or perhaps to all appointed attorneys to be made jointly.
The power of attorney can also be drafted in such a way so as to provide third party oversight over certain decisions, for example, subject to approval by a team of medical or healthcare specialists.
You can record your wishes in respect of your health and welfare while you are mentally able, so that any attorney acting on your behalf has some guidance on what decisions you would like to be made in the event that you can no longer decide these things for yourself.
In particular, you may want to consider whether you would want medical treatment in defined circumstances, especially when and in what circumstances you would choose to refuse life-sustaining medical intervention.
When should I set up a Health and Welfare LPA?
For a Lasting Power of Attorney to be valid you must fully understand the implications of the arrangement at the time of making it. Needless to say you cannot enter into a Health and Welfare LPA after you have lost the mental capacity to make your own decisions.
By way of verification, an independent certificate provider will need to sign to say that you are aware of the implications and that nobody is pressuring you into making a power of attorney.
The LPA will also need to be registered by the Office of the Public Guardian before your attorney(s) can start making decisions on your behalf.
What will happen if I don’t have a Health and Welfare LPA?
If you lose the capacity to make your own decisions about your health and welfare, but you don’t have an LPA in place, this can cause a great deal of distress for your relatives, leaving them with the prospect of having to make an application to the Court of Protection for an order to act on your behalf.
This process can be extremely time-consuming and costly. It can also cause disagreements between family members, especially if they have different ideas about what is best for you.
Needless to say, regardless of your age and health, you should still consider what decisions you would want to be made on your behalf in the event that you became seriously ill, and to discuss these with your family – with a view to putting in place that all important Health and Welfare LPA, sooner rather than later.
The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law and should not be treated as such.
Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.