A health & welfare lasting power of attorney is a legal document which allows you to appoint people you trust to make decisions about health treatments and personal care for you if you lose the mental capacity to make such decisions for yourself.
David Roper, our specialist in LPAs, explains how this document gives your attorney the power to make decisions, on your behalf and in your best interests, in regard to things like eating, washing, medical care, where you should live, or whether to continue life-sustaining treatment.
A health & welfare lasting power of attorney will only give the attorney authority to act for you if you are unable to do so yourself. Mental capacity isn’t a switch, so whilst you may not have capacity to make decisions regarding complicated medical treatment you may still be able to decide what you want to eat and wear. Your attorney is obliged to help you to make those decisions you can, but where you may struggle.
The exact decisions they can make for you will depend on your instructions. For example, an attorney can only consent to or refuse life-sustaining treatment on your behalf if you specifically state this.
You can give your healthcare attorney instructions to refuse medication or particular types of treatment, such as:
• cardiac resuscitation after a heart attack;
• a blood transfusion, for example if you do not want one for religious reasons; or
• electroconvulsive therapy.
Alternatively, you can give them guidance as to when you would be happy with such treatment or factors you would like them to take into account when making decisions on your behalf.
There are certain situations where your healthcare attorney is not allowed to refuse treatment for you, such as when you have the capacity to refuse the treatment for yourself; if you have been sectioned under the Mental Health Act or it is an emergency situation and the treatment is considered life-saving - unless you have made it clear that life-saving treatment should be refused.
A healthcare and welfare attorney cannot make decisions about your finances, business affairs or property matters. They can choose the care home in which you live but they cannot arrange payment of the fees. If you want an attorney to do this, you would need to make a separate property and financial affairs lasting power of attorney.
When does it come into force?
Health and welfare attorneys will only start making such decisions for you if you lose mental capacity, and to the extent that you have lost capacity. This may happen due to mental health problems, a brain injury caused by an accident or a stroke,alcohol or drug abuse, a learning disability, or as a result of a condition such as dementia.
Under the Mental Capacity Act 2005, which created Lasting Powers of Attorney, there are various tests used to judge if you have lost mental capacity. Your family or carers will usually be responsible for deciding if you have mental capacity in everyday cases. For example, a formal assessment by a healthcare professional will not be required to decide whether you are able to dress or cook for yourself.
Where more complex decisions are involved, such as consent for surgery, a doctor or healthcare professional will decide whether or not you have capacity to consent.
It is your attorney’s duty, as far as possible, to help you make your own decisions. The law is clear that assumptions made about your lack of capacity cannot be based on your age, appearance, or condition.
Just because you are incapable of making one kind of decision does not automatically mean you cannot make other types of decision – this needs to be assessed on a case by case basis.
We can guide you through the process of making a power or attorney. We can advise you on selecting the right attorneys, talk you through the sorts of decisions that might be required if you lose mental capacity, and outline your options to ensure that your wishes are known. We will also ensure that the form is completed correctly and is legally valid.
If you need help with setting up a health and welfare power of attorney, please contact David Roper.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
