Health and Welfare Lasting Power of Attorney:
To help those who care for you
……care for you!
Our Guide
Health and Welfare Lasting Power of Attorney (LPA)
A Health and Welfare LPA is a powerful legal document which enables you (the donor) to appoint an Attorney to make decisions on your health and welfare should you lose the Mental Capacity to make decisions for yourself through either ill health or an accident.
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The Health and Welfare LPA can only be registered when the donor loses Mental Capacity and the LPA has been registered with the Court of Protection.
The ability for decisions to be made on the donor's behalf by the attorney will either be temporary (if mental capacity returns for example, in cases of recoverable coma) or permanently (if Mental Capacity does not return for example in worsening cases of dementia)
Who should you choose as an Attorney?
The choosing of your Attorney/s is an important feature of setting up LPAs. They are entirely your choice, and you should choose them paying due regard to your needs and your relationship with them, as well as their ability to carry out the task well and efficiently. They will need to be over 18, someone who has your best interests at heart, organised and understands the duties that they may have to perform.
But don’t worry because our service includes, if you wish, a full consultation with your Attorneys to ensure they accept the role with their eyes open. Above all, they need to be someone you trust with your affairs.
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For guidance, most people choose their spouse, their children, close family member or even their solicitors to act as an Attorney. Note that you are not obliged to select the same Attorneys for each LPA. Indeed some Attorneys are better qualified to manage some tasks than others. For example, if your daughter is a nurse she might be happier to be your Health & Welfare Attorney, and your son might be an Accountant who will perhaps be more comfortable as your Property and Financial Affairs Attorney.
What are the duties of an Attorney?
When the LPA has been registered there are certain obligations and guidelines that an Attorney must follow, to comply with the Mental Capacity Act 2005.
This means that an Attorney must act in the best interests of the donor when making a decision on their Health and Welfare.
This means that they need to take into consideration the below:
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Communicate and encourage the donor to be a part of the decision as much as possible,
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Consider the donor’s past and present feelings and circumstances.
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Consider information that the donor’s close relatives or friends can provide which may suggest what may be in the donor’s best interest.
In addition, Attorney’s have a duty of care to both the donor and for their instructions, meaning that the donor is at the heart of every decision made.
What is meant by losing mental capacity?
Mental Capacity is defined by the Mental Capacity Act 2005 which sets out that a person that who does not have mental capacity cannot do one or more of the following four things:
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Understand the information given to them to make a decision.
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Retain that information long enough to be able to make the decision.
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Consider the information available in order to make the decision.
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To communicate that decision.
There may be instances that an individual losses mental capacity temporarily. For example, in cases of stroke victims, comas and those individuals who have mental health illnesses and have recovered.
After registration
Once the LPA has been registered with the Court of Protection the Attorney will be able to make decisions on behalf of the donor on matters such as:
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Living arrangements.
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Day to day matters such as diet and daily routine.
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Whether to give or refuse certain medical treatments.
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The type of care you receive.
Life Sustaining Treatment:
When considering a Health and Welfare LPA, consideration should be given to whether you wish your Attorney to make decisions about life sustaining treatment. If you choose not to, then all decisions will be made by your healthcare team.
This can be avoided by also making an Advance Directives, also known as a Living Will which enables you to dictate what your wishes are if that situation arises.