A health and welfare lasting power of attorney is becoming an increasingly popular tool for people who want certainty about how their affairs should be managed if they lose mental capacity.
It allows you, the donor, to state in a legally binding document who you would like to act as your attorneys to make decisions on your behalf should you become incapable of making them yourself.
Dee Benians, partner in our private client team in Heathfield, East Sussex explains the benefits of having a health and welfare lasting power of attorney, and she outlines the possible pitfalls if you do not have one.
When you appoint one or more people to act as your health and welfare attorney, you empower them to make decisions for you about important issues such as medical treatment, end of life wishes and where you should live, as well as day-to-day care choices about matters like eating, washing and dressing.
Such a lasting power of attorney enables you to set out in writing how you would like your personal care to be managed while you are incapacitated, providing guidance to your attorneys. It can also place restrictions on the powers they have that you feel may be required, like refusing medication or certain treatment, such as resuscitation after a heart attack.
Your health and welfare attorneys will only start making such decisions for you if you lose mental capacity, which could occur due to:
- mental health issues;
- a brain injury sustained through a car accident;
- a stroke;
- drug or alcohol abuse;
- a learning disability;
- or a chronic illness such as dementia.
The Mental Capacity Act 2005, under which lasting powers of attorney were created, lays out the tests to use to assess whether you have lost mental capacity. These tests will usually be applied by your attorneys, although they may ask your doctor or another medical professional to assess your mental capacity for more complex decisions, such as consent for surgery.
Mental capacity can fluctuate, so you may be able to make your own decisions about some issues, but lack the capacity to make decisions about others. It is the duty of your attorneys to help you make your own decisions where possible and assess capacity on a case-by-case basis.
You can select family members, friends, or professionals to be your attorneys, as long as they are over 18, have mental capacity and are not bankrupt or subject to a debt relief order.
If you appoint more than one, they can act jointly, or you can empower them to make joint or individual decisions. This latter option provides far more flexibility as decisions can still be made if one attorney is not available.
If you lose mental capacity and do not have a lasting power of attorney in place, then, whilst care and treatment decisions can usually be made by those involved in your care (provided they are acting in your best interests), if the circumstances are particularly difficult or there is a dispute between family members, then it may be necessary for an application to be made to the Court of Protection to have a welfare Deputy appointed. This process can take months and is much more costly than registering a power of attorney.
How a solicitor can help
A lasting power of attorney gives your chosen attorneys wide-ranging power over you and your affairs, so it is not something to be entered into lightly.
Our specialist private client lawyers can talk you through your requirements, helping you to decide which attorneys to choose and what sort of guidance you want to give to them. They can also ensure all the paperwork is correctly filled out and that your lasting power of attorney is properly registered (and therefore valid) and one that exactly reflect your wishes.
For further information on lasting powers of attorney, please contact Dee Benians, a partner in our private client team in Heathfield, East Sussex on 01435 890 101 or email deebenians@hugheslaw.co.uk.
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.