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The importance of having a Health & Welfare Lasting Power of Attorney

What is a Health & Welfare Lasting Power of Attorney (H&W LPA)?

A H&W LPA is a legal document that enables a person (known as the Donor) to appoint a person or people (known as the Attorney(s)) (usually a friend or loved one) to step in and make decisions, with legal authority, on their behalf in relation to health and welfare matters should they no longer be able to do so.

When can it be used?

A H&W LPA can only be used once it has been registered with the Office of the Public Guardian (OPG), and if the Donor has lost mental capacity.

What can attorneys make decisions about?

Broadly speaking, H&W LPAs cover ‘personal’ decisions such as:

  • Giving or refusing consent to health care
  • Staying in your own home and getting help and support from social services
  • Moving into residential care and finding a good care home
  • Day-to-day matters such as your diet, dress or daily routine

You can also choose whether your attorneys should make decisions about accepting or refusing medical treatment to keep you alive, if you can’t make or understand that decision yourself.

You can list any instructions that your attorneys must follow, or any preferences that you’d like them to take into account when making decisions on your behalf. This might include things like how often you will get exercise or any medical treatment you would/ wouldn’t want.

At all times, your attorneys have to act in your best interests.

Do doctors listen to my family’s opinions regardless of whether I have a H&W LPA?

Although healthcare professionals often consult with your ‘next of kin’, they are not obliged to act upon what is discussed in the consultation. This is because your next of kin has no legal right to make the ultimate decision unless appointed as an attorney.

Your attorneys have the authority to voice your wishes and, if necessary, challenge decisions being made.

If you give your attorneys the necessary authority, the final decision about life sustaining treatment rests with them.

What happens if I don’t have a H&W LPA?

A H&W LPA can be treated like an insurance policy. Hopefully it will never need to be used but in the event you lack the mental capacity to make health & welfare decisions at least you know those nearest to you will be the ones making those difficult decisions about your life on your behalf.

If you don’t have a H&W LPA in place and a decision needs to be made on your behalf because you lack the mental capacity to make it, Social Services and/or the Court of Protection may need to become involved. An application to the Court of Protection can be lengthy, costly and stressful and could result in a decision which is not in line with your wishes.

Why is it important to have a H&W LPA?

If you lose capacity to make your own decisions and you do not have a H&W LPA in place, it may be left up to health and social care professionals to decide whether you need to be put into a care home and if so, which one.

Example: Peter’s wife Sue has advanced dementia and needs to go into a care home. She has no H&W in place. Peter feels as her next of kin he should be able to decide which care home she goes into. However, as there is no H&W in place, social services are entitled to decide which care home she goes into. This may not be the care home Peter had envisaged for his wife, and it may not be the closest to their home.  

Also, if you lose capacity to make decisions on your own and have to undergo medical treatment, it will be up to the medical professionals to make decisions on your behalf.

Example: Michael’s wife Susan has had a stroke and now lacks mental capacity. She has to be put on a life support machine. Susan had mentioned to Michael previously that should she ever be in that position, she wanted him to refuse consent on her behalf. However, as there is no H&W LPA in place, it is not Michael’s decision to make. Instead it is up to Susan’s doctor to decide.

How do I put in place a H&W LPA?

If you require any advice on putting in place a Health and Welfare Lasting Power of Attorney, please contact our Wills & Probate team on 01926 422 101 (Leamington office) or 02476 229 582 (Coventry office).

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