Expert Lasting Power of Attorney health and welfare guide

A health and welfare Lasting Power of Attorney or LPA is a legal document that gives a trusted friend or relative the authority to make certain decisions about care on your behalf, should you ever lose the ability to do this yourself.

Having a health and welfare LPA in place can make matters much easier for your loved ones, should you ever need them to manage your affairs for you. Without an LPA, they would not necessarily be able to arrange care for you or make choices in respect of your medical treatment.

At Lockings Solicitors, we can advise you on how to make a health and welfare LPA and draft the document for you in accordance with your wishes. We are experienced in dealing with LPAs and we will ensure that you understand the implications of signing one and that we answer all of your questions to your satisfaction.

We have a high level of expertise in dealing with LPAs. Associate Director and Head of Private Client Joanne Liversidge is a member of Solicitors for the Elderly, a respected national network of solicitors with particular expertise in legal affairs that affect older clients. She is also a Dementia Friend with a good understanding of the disease and the difficulties it causes for sufferers and their families.

As well as conducting more complex matters personally, Joanne supervises a team of expert solicitors and paralegals who are all down-to-earth, approachable individuals who take the time to understand and achieve your needs.

If you would like to discuss making a health and welfare power of attorney, ring for a FREE initial chat on 01482 300 200, email us at welcome@lockings.co.uk or fill in our Free Online Enquiry and we will call you back promptly.

Why make a health and welfare Lasting Power of Attorney?

If you put a health and welfare LPA in place, your attorney will be able to make decisions about your care on your behalf, should you ever lose the mental capacity to do so yourself.

This could be particularly beneficial if a number of welfare decisions needed to be made on your behalf. Without a health and welfare LPA, your loved ones might need to make an application to the court each time a decision has to be taken.

It can also be helpful to have a health and welfare LPA if there is any risk that your relatives might disagree over your care. By giving your attorney the power to decide, you can reduce the scope for disputes.

What authority can you give your attorney under a health and welfare LPA?

Your attorney under a health and welfare LPA can make a range of decisions if you authorise them to, including in respect of:

  • Where you will live, to include choosing a care home if necessary or arranging home help
  • What your daily routine will look like
  • Arranging personal care
  • Liaising with social services
  • What medical treatment you will receive, to include life-sustaining medical treatment
  • What treatment will be refused on your behalf, for example, cardiac resuscitation and medication

A health and welfare LPA is not necessary for routine medical treatment.

This type of LPA can only be used in the event that you lose mental capacity and it needs to be registered with the Office of the Public Guardian or OPG before it is used.

Decisions your health and welfare attorney cannot make

You can restrict your attorney if you wish, giving details of the decisions they can make on your behalf. In addition to this, no health and welfare attorney can make the following the decisions:

  • Refuse medicine that has been prescribed by a clinician if you are on leave from hospital or have been sectioned
  • Make a decision about where you will live if you are the subject of a guardianship order
  • Make a decision as to whether or not you will receive life-sustaining treatment without checking whether an advance directive exists

Health and welfare LPA or Advance Directive?

You have the option to make an Advance Directive, also referred to as an Advance Medical Decision or living Will if you wish. This can set out your instructions about what medical treatment you want to receive or refuse, including life-sustaining treatment. If you make an Advance Directive, it is important to make sure that it does not give different instructions to those included in your LPA.

Whichever document you signed most recently will take priority.

Choosing ‘people to notify’ of your LPA

When you make your LPA, you have the option to choose up to five ‘people to notify’. These are individuals who will be told that your LPA is going to be registered. They will have the right to see the LPA before it is registered and will be able to object to it if they have any concerns.

There are several benefits to this. Firstly, it can help to have several people who are aware that you have made an LPA, should it ever be needed. It can also reduce the risk of disagreements and misunderstandings arising later on.

It gives close family members the chance to feel involved with what is happening, even if you have not selected them to be an attorney. In addition, it is a way of safeguarding your interests. By ensuring that others are aware of the existence of the LPA and its contents, your attorneys may be more focused on observing its terms.

Who to choose as your health and welfare attorney

You can choose whomever you want to be your attorney, but you should bear in mind that the role can be onerous and time-consuming. It needs to be someone that you trust implicitly to make the choices that you would want.

If you intend to choose two or more attorneys, it is important to choose individuals who will be able to work well together, particularly if you want them to make all decisions jointly. There is also the option to appoint more than one attorney, but to permit them to take decisions unilaterally.

Alternatively, you can allow some decisions to be made individually, such as simple day to day matters, and require other more onerous decisions to be made jointly, such as stopping medical treatment.

You should consider appointing someone younger than you, so that there is a better chance that they will be able to take on the role should it ever be necessary.

They will need to be reliable and it should be someone who knows you well, so that they will have a good idea of what decisions you would want to be made. You should discuss your intentions with your proposed attorney before you make the LPA so that you can check that they are happy to take on the job and that they understand what it entails. This will also give you the opportunity to talk through the sorts of decisions that might be necessary and how you would prefer them to act.

You can name one or more replacement attorneys. These will be able to act if your original choice is unable or unwilling to do so if the time comes. They can also step in if an attorney needs to stop acting on your behalf at any stage. Any change would need to be communicated to the Office of the Public Guardian.

Mental capacity for making a health and welfare LPA

If you wish to make a Lasting Power of Attorney, you need the mental capacity to understand the implications of this. You need to have been given the relevant information and be able to understand and retain this information. You also need the mental ability to consider the information and decide how you wish to act.

If someone is suffering from the earlier stages of a condition that causes mental impairment, such as dementia, they may still be able to execute an LPA, provided they have the necessary level of understanding. It will be for their certificate provider to make this assessment.

LPA certificate providers

When someone signs an LPA, a certificate provider is needed to sign to confirm that the individual understands the significance of the LPA and that there has been no pressure to sign. A certificate provider is either someone who has known the individual well for at least two years or a professional with relevant skills such as a doctor, a social worker, a mental capacity advocate or a solicitor with LPA experience.

You cannot use someone who is connected to you, such as a family member, your partner, someone related to your attorney or their partner, anyone connected to you in business or anyone involved in your care home, if you live in one.

The certificate on an LPA

The certificate signed by your certificate provider will state the following:

  • You have not been pressured into signing the LPA
  • You understand the contents of the LPA and what it is for
  • You understand the implications of signing the LPA and the authority that it gives to your attorney
  • There are no reasons why the LPA should not be made

The role of the certificate provider

The certificate provider has to be satisfied that you fully understand the implications of making an LPA and that you are not being coerced into signing it or fooled in any way. Should questions ever arise in the future, they need to be able to confirm that they made adequate enquiries into your understanding of the situation and whether you were being pressured.

They should speak to you on your own to discuss it. If your attorney were to be present for this conversation, it would invalidate the certificate.

The certificate provider should ask you a number of questions to satisfy themselves on the above points. These could include:

  • What is an LPA?
  • Why have you chosen the attorney that you have?
  • What power will your LPA give to your attorney?
  • Why are you choosing to give these powers to your attorney?
  • What matters will your attorney be able to decide for you?
  • Has your attorney told you what answers to give to the questions you are being asked?
  • Have you any concerns over whether your attorney can be trusted?
  • Do you know of any reason not to make an LPA?

How to complete a health and welfare Lasting Power of Attorney form

The health and welfare LPA form is around 24 pages long and you may want help completing this. One of our LPA experts can take your instructions and complete the form on your behalf if necessary. We will ensure that you fully understand each section and that the document accurately reflects your wishes.

A professionally completed LPA stands the best chance of being accepted when the application to register it is made.

You can choose to have more than one attorney if you want, in which case you need to decide whether they can act independently or whether you want them to make all decisions together. You can also appoint replacement attorneys in case your original choice is unable or unwilling to act.

You will need to choose whether to give your attorney the authority to make decisions about life-sustaining treatment. If you do, your attorneys can have the same input in speaking to doctors that you would have had.

There is the option to include the names of people whom you would like to be notified if the LPA is used. This is a safeguard as they will be able to object to the LPA on certain grounds.

You can list preferences and instructions for your attorney. They can take into account any preferences if they feel this is appropriate, but they are bound to follow your instructions.

Your certificate provider’s details will need to be added to the form and they will need to sign the LPA to confirm that they are happy that you understand the implications and are signing of your own free will.

Registering a health and welfare LPA

It is advisable to apply to the Office of the Public Guardian to register an LPA as soon as it has been made. The LPA cannot be used until it has been registered, and registration can take several months. Registering it before it is needed also means that there is time to deal with any queries raised by OPG.

We can deal with the registration of your LPA on your behalf and then it can be kept for the future in case it is ever needed.

Taking on the role of a health and welfare attorney

If the time comes that your attorney needs to step in to make decisions on your behalf, they are bound by law to act in your best interests at all times.

The will need to keep in mind your own values when dealing with your affairs. Where possible, they can discuss the situation with others close to you and take their advice as to what you would have wanted to happen in respect of major decisions.

Your attorney is bound to:

  • Stay within the legal boundaries of the LPA
  • Help you to make decisions yourself if you still have some ability to do so
  • Keep a record of medical decisions that they make on your behalf, including how these were reached, who the situation was discussed with and the advice and recommendations of carers and medical practitioners
  • Observe the five principles contained in the Mental Capacity Act 2005:
    • Presume that you have capacity unless it is shown that you do not
    • Help and support you to make decisions yourself if possible
    • Permit you to make an unwise decision if you want to, as is their right
    • Act in your best interests at all times

Make decisions on your behalf which are least restrictive of your rights and freedoms

Lasting Power of Attorney health and welfare guidance for attorneys

If you have been appointed as an attorney for someone under a health and welfare LPA, you need to advise their relatives, friends and the people listed in the LPA to be notified when you start using the LPA and making decisions for the donor.

You also need to advise anyone involved in the person’s care such as their medical team, care workers and social workers. We can provide you with a certified copy of the LPA that you can give to people by way of evidence that you have the authority to act.

It is also open to you to ask the person in charge of the donor’s money if you need to spend money on items of care, such as clothes, hairdressing, items for their room in a care home or money for a trip out or to see friends or relatives.

Can I cancel a health and welfare LPA?

It is open to you to cancel your health and welfare LPA provided that you still have mental capacity. A deed of revocation should be drawn up and executed. If your LPA has been registered, the deed of revocation should be sent to the Office of the Public Guardian so that they can amend their records.

You should also tell everyone involved, including your proposed attorney, your relatives and anyone named on your LPA as people to be notified.

If you wish to appoint different attorneys or change the authority you are giving them, you can make a new LPA.

Contact our Lasting Power of Attorney health and welfare solicitors East Yorkshire and York

If you would like to discuss making a health and welfare LPA, we will be happy to help and to answer any questions you may have.

You can ring us for a FREE initial chat on 01482 300 200, email us at welcome@lockings.co.uk or fill in our Free Online Enquiry and we will call you back promptly. We have offices in Beverley, Hull and York and deal with Lasting Powers of Attorney in East Yorkshire and the York area.

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