The importance of Health and Welfare Lasting Power of Attorney
4 January 2018
Do you have an Enduring Power of Attorney (EPA) or a Property and Financial Affairs Lasting Power of Attorney (P&F LPA)? What about a Health and Welfare Lasting Power of Attorney (H&W LPA)?
EPAs only cover decisions regarding your property and financial affairs and not decisions regarding your health and welfare. Since the introduction of LPAs in 2007 it has been possible to appoint attorneys to make decisions regarding both your property and financial affairs and your health and welfare and yet many more P&F LPAs have been registered with the Office of the Public Guardian than H&W LPAs. However, the number of H&W LPAs being registered is increasing as more people begin to recognise the importance of them.
How do H&W LPAs work?
As with P&F LPAs, H&W LPAs enable you to appoint a person (or people) of your choice as your attorney(s) to make decisions, with legal authority, on your behalf. Unlike P&F LPAs, however, H&W LPAs can only ever be used by your attorney(s) to make a decision on your behalf if you lack the mental capacity to make that decision yourself – if you have the mental capacity to make a decision, your attorney(s) cannot make it for you.
What kind of decisions do H&W LPAs cover?
Broadly speaking, H&W LPAs cover ‘personal’ decisions such as what medical treatment and care you should receive, where you should live and who can visit you. H&W LPAs can also cover life sustaining treatment decisions.
Won’t my family be able to make these decisions for me without a H&W LPA?
Whilst your family are likely to be consulted on such issues, they won’t have the legal authority to make decisions on your behalf as your attorney(s) would.
Only your next of kin would be consulted about resuscitation and life sustaining treatment decisions and this may not be the person you want/expect it to be. Further, your next of kin and other family and friends may not be aware of your wishes or there may be disagreement between them.
What are the advantages of H&W LPAs?
H&W LPAs give you the peace of mind that you have given a person (or people) you trust, and who are aware of your wishes, the legal authority to make decisions on your behalf should you lack the mental capacity to make such decisions yourself. H&W LPAs will also give your next of kin, family and friends peace of mind that they know what your wishes are and that these can be expressed on your behalf.
What if I don’t have a H&W LPA?
If you don’t have a H&W LPA in place and a decision needs to be made on your behalf because you lack the mental capacity to make it, Social Services and/or the Court of Protection may need to become involved. An application to the Court of Protection can be lengthy, costly and stressful at what would be an already difficult time and could result in a decision which is not in line with your wishes.
How do I put in place a H&W LPA?
If you require any advice on putting in place a Health and Welfare Lasting Power of Attorney, please get in touch with Natasha Senior. Alternatively, please contact another member of our Wills and Succession Planning Team.
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The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at January 2018.