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Lasting Power of Attorney — Health and Welfare

Whilst many of us now understand the advantages of making a Property and Financial Affairs LPA, fewer recognise the benefits of making a Health and Welfare LPA.                                                                                 Both types of LPA enable you to appoint someone of your choice (your “Attorney”) to act with legal authority on your behalf to make decisions if you should ever become unable to do so yourself.

What is a Health and Welfare LPA?

A Health and Welfare LPA enables you to choose the person, or persons, you would wish to make personal decisions on your behalf, in such circumstances.  This would include decisions about medical treatment or care, or where you should live.

Unlike the financial LPA, a Health and Welfare LPA can only ever be used if you have lost the mental capacity to make such decisions yourself.  All the time you have capacity, no one else can make these decisions for you.

However, by making the Health and Welfare LPA, you have the opportunity to nominate someone you trust, who knows your wishes, to take such decisions.  Your Attorney has a duty to make such decisions in your best interests.

When would I need a Health and Welfare LPA?

  • If you have a degenerative medical condition.  If you know that your physical or mental health is likely to progressively deteriorate, and you want to ensure that someone has the authority to express your wishes about continuing medical treatment if you become incapable of doing so yourself.
  • If you want to give someone the ability to consent to or refuse life sustaining treatment on your behalf.
  • If you want to decide who will make the decisions about where you live and what support is needed to enable you to stay at home or, where necessary, to choose the best residential care for you.
  • If you want someone who is not your legal next of kin to make decisions about Health and Welfare, such as your unmarried couples or friends.
  • If you think there could be an argument between your next of kin as to what is in your best interests.

What decisions would my Attorney be able to make for me?

Your Attorney could make decisions about your daily routine such as what you eat, what you wear and who can visit you.
Power to make decisions concerning your medical care and treatment, including deciding whether to consent to or refuse life-sustaining treatment, such as being resuscitated, can also be given to your Attorney.
Your Attorney can also ensure that the care you receive, whether in your own home or in a residential care home, meets your wishes and expectations.
It is often difficult to discuss these issues with your family, but doing so ensures that they are aware of your wishes, and
prompts discussions as to how you would want such decisions to be taken.
It gives you the reassurance of knowing that – if the worst should happen – you have chosen someone you trust to take these decisions for you.

What happens if I do not have a Health and Welfare LPA?

  • Decisions could be made without knowledge of your wishes.
  • Only your legal next of kin would be consulted about decisions such as resuscitation and life sustaining treatment.
  • Social Services may need to become involved in decisions as to where you should live and what care you require.
  • You may be resuscitated against your wishes.
  • Decisions may have to be made by the Court of Protection – rather than by the people you choose.  An application to the Court of Protection is likely to be expensive and time-consuming.

It is often difficult to discuss such issues with your family, but doing so ensures that they are aware of your wishes, and prompts discussions as to how you would want such decisions to be taken.  It gives you the reassurance of knowing that – if the worst should happen – that you have chosen someone you trust to take these decisions for you.

If any decisions needed to be made about your personal welfare when you have lost mental capacity then usually people looking after you such as carers, social workers and medical professionals would be able to make decisions on your behalf as long as they acted in your best interests.

However the situation can become very difficult if there is disagreement. For example, Social Services can make decisions about where you should live even if your family disagree. If  there is a serious dispute, your family would have to apply to the Court of Protection for an order. The Court is very unlikely to appoint a Deputy to take charge of decisions about your health and welfare generally, and so it is possible that more than one application must be made to the court as circumstances arise.

In the absence of a Health and Welfare LPA you are at risk of having strangers making decisions about all kinds of issues relating to your personal welfare, even if your friends or relations know what your wishes would have been. Giving a Health and Welfare LPA to someone you trust means that this risk is greatly reduced.

Having a Lasting Power of Attorney does not mean you are giving up control – a Lasting Power of Attorney enables you to decide.

Court of Protection

The Court of Protection takes responsibility for the affairs of people who do not have the capacity to make decisions for themselves. If a person loses capacity it will be necessary for someone to be given authority to manage their financial affairs. An Application is made to the Court of protection for a Deputy to be appointed. Applications to the Court of Protection can also cover issues in relation to health and welfare. Our Team will be able to assist you with any Applications that are required.

For more information about Lasting Powers of Attorney, please call Melanie Dunton and her team on 01689 822554 or email wills@thomasdunton.co.uk

Wills, Probate & Powers of Attorney

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