There are two forms of LPA, one for property and finances and one for health and welfare.
Clients in the past may have underestimated the importance of having a health and welfare Lasting Power of Attorney (“LPA”) in place. Ordinarily clients will concentrate on the more popular Property and Financial affairs LPA.
This has mainly been due to the fact that it is quite rightly normally assumed that should any important decisions be required to be made in relation to a persons’ health and welfare, and the individual concerned lacked capacity, then their family would be consulted by the relevant professionals prior to a decision being made.
However, it has recently become more apparent that that is not always the case unless this form of LPA is in place.
What authority does a health and welfare LPA provide?
A health and welfare LPA allows for the donor (the person making the power of attorney) to plan in advance the people whom they wish to make decisions on their behalf when they are no longer able to make those decisions themselves. The LPA allows the donor to make clear what decisions they wish to be made on their behalf, who should make such decisions and provide guidance as to how the decisions should be made.
The health and welfare LPA will enable the donor’s chosen attorney(s) to make decisions on their behalf in relation to:
- their treatment;
- the care they receive;
- the medication they take;
- where they should live, i.e. whether the donor should remain in their own home or choosing a suitable care home for the donor; and
- day to day issues.
In the document the donor can also specifically state whether or not they wish for their attorney(s) to make decisions in relation to life sustaining treatment that they receive, whether this be a serious operation, organ transplant or cancer treatment.
The health and welfare LPA also allows the donor to include restrictions and conditions, which specify the procedures the attorney(s) should follow and the advice they should seek prior to making any decisions. Guidance can also be included, but it is not binding, which can assist the attorney(s) in making decisions in the donor’s best interests and allows the donor to include their views in relation where they wish to live, whom they wish to be consulted and their views on medical treatment.
What if a person loses mental capacity without having made a health and welfare LPA?
The stance of local authorities varies from one to the next and therefore there is no guarantee that the important opinions of family members and friends will be given the weight that the person concerned may have wished. We are unfortunately seeing that the opinions and decisions of the professional involved may overshadow any important views of family and friends contrary to the spirit of the Mental Capacity Act 2005.
Unlike with clients who do not have a Property and Financial Affairs LPA in place, where a Deputyship order can be obtained from the Court of Protection granting authority to deal with the same should a person lose capacity, albeit at a greater cost; if someone loses the capacity to make decisions in relation to their health and welfare it can almost be impossible for a family member, friend or professional to obtain a Deputyship authority from the Court of Protection.
Under s16 of the Mental Capacity Act 2005 (MCA 2005), the Court of Protection is able to appoint a Deputy in relation to a persons welfare decisions however they are reluctant to do so in any circumstances other than the most difficult cases and in most cases the court would prefer to make a one off decision rather than appointing a welfare Deputy.
The court will only normally grant a welfare deputyship in cases where:
- a series of welfare decisions are required to be made on behalf of the protected party;
- significant and essential decisions cannot be made without the court’s permission;
- there is no other way of settling the matter in the best interests of the protected party without obtaining a decision from the court; or
- there is a history of disputes within the protected party’s family which may make it difficult for an amicable decision to be reached.
Under Section 20 MCA 2005 the Court cannot authorise a person to make decisions on behalf of a protected party in relation to the following:
- the refusal of life sustaining treatment for the protected party;
- who the protected party has contact with; and
- the detention and restraint of the protected party, although there are some exemptions to this rule.
Therefore if you wish to specify a particular person(s) to make decisions on your behalf in relation to your health and welfare it is essential to have a health and welfare LPA in place.
If you would like further information in relation to health and welfare power of attorneys or for assistance in putting a document in place please contact the Private Client Team on 0113 336 3427.
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