The Importance of having a Health and Welfare Lasting Power of Attorney

This article has also been published in the Somerset County Gazette and the article can be found online here.

Advance care planning allows you to make choices and decisions about your future care, in case there is a time when you can't make them for yourself. Lasting powers of attorney are just one way to plan ahead. Other ways to plan ahead include advance statements or advance decisions. These allow you to put in writing that you want to refuse certain treatments, or your preferences about other care choices.

Decisions about a person's health and welfare are not particularly easy decisions to make, especially when a person is making them on behalf of someone who lacks capacity to make those decisions themselves.

There are two types of Lasting Power of Attorney (LPA), which allow you to appoint someone to act on your behalf should you become unable to do so, namely, Property and Financial Affairs LPA and Health and Welfare LPA.

A health and welfare LPA allows the person appointed on your behalf, the attorney, to make decisions on your behalf about your health and welfare, if there comes a time when you are unable to make those decisions for yourself.  Health and welfare decisions could include decisions about where you live, your day-to-day care including your diet, who you may have contact with and consenting to or refusing medical examination and treatment.

You can also give your attorney the power to accept or refuse life-sustaining treatment on your behalf.

Many people are anxious to ensure that their property and financial affairs are looked after, in the event that they are unable to do so themselves, but often postpone making a health and welfare LPA for 'another day' and often that day never comes.

If you do not have a health and welfare LPA and you lack capacity to make such decisions yourself, a family member will be faced with applying to the Court of Protection for a Deputyship Order. What many people do not know however, is that Health and Welfare Deputyship Orders are granted much more sparingly and many are rejected by the Court. The Court will only appoint a Health and Welfare Deputy as a last resort, and it is much more expensive and time consuming compared with having a Health and Welfare LPA.

In the absence of a health and welfare LPA or a Deputyship order, the Mental Capacity Act gives a general authority to allow decision makers to take action in providing care for individuals who lack capacity, as long as those decisions are in the best interests of the incapacitated individual, and all reasonable steps have been made to ensure the person in question cannot make the decision himself. The difficulty with this is that 'decision makers' often have competing objectives, for example, to balance out what is in the best interests of the patient verses the costs considerations of providing that care. If you have a health and welfare LPA and have communicated your wishes to your attorneys it can maximise your chances of having your wishes protected in the future. 

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