More and more people are prudently registering a financial lasting power of attorney to ensure their economic affairs are managed by someone they trust if they should lose mental capacity and are unable to make decisions for themselves. But why do you need a health and welfare power of attorney as well?
While it is important to have someone manage your money matters and investments if you are incapacitated, a financial lasting power of attorney does not give someone the legal power to make decisions about where you live and are cared for, your medical treatment and care, your diet and your daily routine, as James Woods a private client solicitor at Hughes Solicitors in Heathfield, explains.
The importance of having a health and welfare lasting power of attorney was highlighted during lockdown when former Coronation Street star, Leandra Ashton, was arrested for trying to take her 97-year-old mother out of a care home. No charges were brought, but Ashton’s mother was returned to the home because although there was a financial lasting power of attorney in place, this did not give Ashton the legal power to move her mother.
A health and welfare lasting power of attorney is a legal document which lets you select one or more attorneys, and set out in writing how you would like them to organise your care and wellbeing while you are unable to make such decisions. You can give as much guidance as you like, for example if you wish to remain in your own home as long as possible, or if you have certain dietary preferences.
You can also place any restrictions on them that you think might be necessary, such as telling them you do not want certain types of treatment, like a blood transfusion or resuscitation after a cardiac arrest.
It is usually a good idea to appoint more than one attorney because, as long as you have given your attorneys the power to make individual decisions, it means you are still cared for if one of the attorneys dies or is unable to continue in their role.
Family members, friends or professionals can all be appointed as an health and welfare attorney, provided they have mental capacity and are aged over 18.
Your attorneys will only begin running your affairs and making decisions for you if you lose mental capacity, which could arise because of mental health problems, brain damage caused by a road traffic accident, a chronic illness such as dementia or a stroke, or drug or alcohol problems.
Under the Mental Capacity Act 2005, you will be deemed to be unable to make a decision for yourself if: you cannot understand information relevant to a decision; retain that information; use or weigh up that information as part of the decision-making process; and have difficulty communicating that decision. Your attorneys will usually be charged with applying the incapacity test, although they may ask a medical professional to assess your mental capacity for more serious decisions, such as consent for surgery.
Mental capacity can come and go and your attorneys have a duty to encourage you to make your own decisions whenever possible and assess your capacity on a decision-by-decision basis.
How a solicitor can help
A health and welfare lasting power of attorney gives your attorneys a lot of power over you and your affairs, so you should get expert legal advice to help you choose the right attorneys for you and ensure the guidance you give them, and the restrictions you place on them, are clear and unambiguous.
Once you have made these important decisions, our specialist private client lawyers can draft a lasting power of attorney that precisely reflects your needs and wishes, ensure all the necessary paperwork is properly filled out and register your lasting power of attorney to ensure it is valid.
This article is for general information purposes only and does not constitute legal or professional advice. Please note that the law may have changed since the date this article was published.