Passing on the legal right for someone to make decisions for you might not be the easiest decision to make. However, it can give you peace of mind in the long run, provided it’s granted to the right person with the right powers in place.

A Lasting Power of Attorney (LPA) is a document that allows you (the ‘donor’), to appoint one or more people (‘attorneys’) to help you make decisions and/or make decisions on your behalf.

It’s to appoint a health and welfare power of attorney to make decisions for you in the event that you lack the mental capacity to make certain decisions on your own. 

Before you do, we’ll give you all the information you need to make a safe and informed decision about whom you give legal powers to and why.

What is a health and welfare power of attorney?

A lasting power of attorney for health and welfare is a legal tool that provides your chosen attorney with the power to make (or help the donor make) decisions about things such as:

  • Daily routine (hygiene, nutrition, and exercise)
  • Medical care and treatments
  • Where the donor resides

An attorney can only start making decisions for the donor once the donor no longer has the mental capacity to make them alone, responsibly.

Depending on what you include in your Lasting Power of Attorney, your healthcare attorney can also refuse certain treatments on your behalf.

Such as:

  • Blood transfusions
  • Medication
  • Cardiac resuscitation
  • Electroconvulsive therapy

In the case of electroconvulsive therapy, your attorney can refuse this treatment on your behalf, even if you’re sectioned and a clinician prescribes the treatment.

However, your healthcare attorney cannot refuse medical treatment under the following conditions:

  • If you’re sectioned under the Mental Health Act and you’re prescribed treatments by a responsible or approved clinician who is in charge of your administered treatment at the time, In this circumstance, the only treatment your attorney can refuse is electroconvulsive therapy.
  • It’s a life-saving emergency unless you have explicitly stated in your lasting power of attorney that your attorney can refuse life-saving treatment on your behalf.
  • You have the mental capacity to refuse treatment yourself.

 Mental capacity

‘Mental capacity’ refers to your ability to understand and process information, and then make a decision based on that information. This also includes being able to effectively communicate decisions about your life.

If you’re unable to understand information, make a decision, or communicate a decision, you are considered to ‘lack the capacity’ to do so. This could be a permanent or short-term state.

  • A permanent lack of capacity is when your ability to process information and make decisions is, and will always be, affected. For example, you have dementia, or a brain injury.                        
  • A short-term lack of capacity means that your ability to understand information and make decisions changes from day to day. This could be due to, for example, mental health issues, medication side effects, or if you’re unconscious.

Your mental capacity can be determined by the following parties:

  • Your friends and family can assess whether you have a lack of mental capacity if the decisions are based on basic day-to-day actions.                                                                                                                   
  • A healthcare professional can rightfully assess your mental capacity for decision-making if the decisions involve more complex scenarios, like the consent of medical treatment.

And, before finalising any decisions, the attorney must make sure that they inform those involved in the donor’s care, including:

  • Doctors and healthcare staff
  •  
  • Care workers, social workers, and other social care staff
  •  
  • Friends and relatives

Using the donor’s money

There might be situations where the attorney needs to use some of the donor’s money in order to maintain or improve their quality of life. The funds cannot be released without the permission of the individual in charge of the donor’s funds.

Reasonable expenses can include:

  • Extra care and support, so that the donor can go out more and enjoy more flexibility.
  •  
  • Decorating a room in a care home or renovating their home to make it safer or more accessible
  •  
  • New clothes, hairdressing, or other hygiene-related items

Who can make a lasting power of attorney?

Anyone over the age of 18 and with the mental capacity to make decisions can have a lasting power of attorney.

You don’t need to live in the UK or be a British citizen to do so.

A middle aged woman is speaking to a doctor in a white coat, who is holding a file.

What happens if there is no health and welfare LPA in place?

If there’s no health and welfare LPA in place, when you lose the mental capacity to make decisions for yourself, your family and friends will not have the automatic authority to make decisions on your behalf.

This means that other parties will make decisions about your health and welfare, depending on the circumstances at the time. For example, social services will decide where you live, and the care you receive, regardless of your wishes, when you still have mental capacity.

With no lasting power of attorney for health and welfare in place, the logistics of your life have the potential to become more complicated than necessary, which can lead to additional stress on you and your loved ones.

Friends and family can apply to the Court of Protection to be Deputy and make decisions on your behalf once they receive deputyship. However, this is a lengthy process and expensive process, that can take six months or more to complete.

For these reasons, it’s important that an LPA be established while you’re still mentally capable of doing so.

Activating power of attorney for health and welfare

To create a lasting power of attorney for health and welfare, you must 

  • Choose your attorney (you can appoint more than one)
  •  
  • Complete the required forms to appoint your attorneys
  •  
  • Register your LPA with the Office of the Public Guardian

Registering your LPA can take up to 20 weeks, so it’s advisable to start the process as soon as you can. It costs £82 to register an LPA unless you receive a reduction or exemption.

You’re entitled to cancel your LPA if you no longer need it or wish to appoint alternative attorneys.

For more information, see Government Advice regarding lasting power of attorney duties for health and welfare.

For more information regarding lasting powers of attorney for money management, talk to one of our financial planners today.

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Picture of Ray Best

Ray Best

Like his academic development, writing came late to Ray. He has written several published works, “Inheritance Tax Planning – My Way” and “Shareholder Protection & Partnership Protection” and has had four feature articles published in Tax Adviser magazine, but the publication he is most noted for is the joint collaboration with Tony Granger “Inheritance Tax Simplified”.

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