How to activate Power of Attorney for health and welfare

If you have a loved one who has nominated you as their attorney under a health and welfare Lasting Power of Attorney (LPA), the time may come when you need to activate it. We look at what to do after a health and welfare LPA has been signed to ensure that it is ready for use and what to do if it is ever necessary for you to take on the role of attorney. 

At Lockings Solicitors, our LPA team has a high level of experience, with particular expertise in helping older clients and their families.

If you have been appointed as a health and welfare attorney and you would like help dealing with the initial stages of implementing the LPA, please call us. 

We can also help with putting a health and welfare LPA in place for those who still have the mental capacity to do so. Even if the individual in question has lost some mental function, they may still have sufficient understanding to sign an LPA. We can advise individuals on making an LPA and guide them through the process, ensuring the implications of signing are fully understood. 

What is a health and welfare Lasting Power of Attorney? 

A health and welfare Lasting Power of Attorney is a legal document authorising one or more appointed attorneys to deal with someone’s health and welfare matters, should they ever become unable to manage these themselves. 

Decisions a health and welfare attorney can make include: 

• Where someone will live 
• What their daily routine will be 
• What help they will have 
• What medical treatment they will receive and what will be refused on their behalf 

It can only be used once someone has lost the ability to make their own decisions. 

Registering a health and welfare Lasting Power of Attorney 

Once a health and welfare LPA has been signed, it is advisable to register it. Registration needs to take place before the LPA can be used and it often takes the Office of the Public Guardian (OPG) several months to deal with a registration. 

By registering it straightaway, you will be able to respond to any queries that are raised and ensure that the document is ready for use, should it ever be needed.  

If the donor has listed people in the LPA who need to be notified of its registration, there is a six-week waiting period prior to the registration time. This is to allow them to raise an objection to the LPA if they have concerns over the appointment of the attorney. 

Form LP3 needs to be filled in for each person to be notified of the LPA. This is the ‘Form to notify people’ and it must be sent to each person named in the LPA under the ‘People to notify’ section. This should be done before the application to register the LPA is sent. 

To register the LPA, section 14 of the LPA form needs to be completed. The form should then be sent to the Office of the Public Guardian with a payment of £82. A reduced fee can be paid by the individual making the LPA if they are on a low income. 

Starting to use a health and welfare LPA as an attorney 

You can only start to use a health and welfare LPA once the donor can no longer make their own decisions.  

If the LPA has been registered and registration took place on or after 17 July 2020, the donor and the attorneys will have received an LPA reference number and activation key from the Office of the Public Guardian. 

When the time comes to start using the LPA, an attorney can create an account, adding the LPA and sharing it online by way of a secure code with third parties. This means that those who need to see the LPA can do so online, checking that it is valid and that the attorney has the necessary authority to make decisions. All the third parties will need is the donor’s name and the access code. 

Ascertaining loss of mental capacity 

The LPA may contain a clause requiring a doctor to certify loss of mental capacity before it can be used. Someone still has mental capacity if they can: 

• Understand the consequences of a decision and the information needed to make the decision 
• Retain the information long enough to make the decision 
• Consider the options and make their choice 
• Communicate their decision in some way – this does not have to be verbally 

If you believe that a donor who has appointed you as their attorney has lost mental capacity, you can ask a professional to certify that this is the case so that you can start to use the LPA. 

Acting as a health and welfare attorney 

As an LPA attorney, you will have a range of duties and obligations in carrying out your role, including: 

• Acting within the scope of the LPA, to include observing any restrictions on the decisions you can make on behalf of the donor 
• Assisting the donor to make decisions if they still have some ability to do so 
• Following the five main principles contained in the Mental Capacity Act 2005, as follows: 

• Presume that the donor has the ability to make their own decisions unless it is established that they do not 
• Support the donor in making their own decisions if possible 
• Remember that the donor has the right to make an unwise decision if they wish 
• Act in the best interests of the donor at all times 
• Make decisions on behalf of the donor that cause the least restriction to their rights and freedoms 

• Keep records of financial expenditure 
• Keep records of major decisions you made for the donor and of whom you spoke to about these decisions before making them 

Help with using a health and welfare LPA

Taking on the role of someone’s health and welfare attorney can be daunting. Our LPA team can provide guidance and advice to ensure that the correct process is followed and that you have the necessary authority to start acting as an attorney. 

We know that this is likely to be a difficult time for you and your family and you will find our LPA solicitors to be helpful and understanding. We have in-depth experience of advising attorneys and we will do all we can to make the situation as easy as possible for you. 

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

If you would like to speak to an expert health and welfare LPA solicitor, call us today.