Why You Should Make It Your New Year’s Resolution To Make A Health & Welfare Lasting Power Of Attorney

According to dementia charity, Alzheimer’s Society, there are currently 850,000 people living with dementia in the UK, with numbers expected to increase to more than one million by 2025. Should a person develop dementia, it is important for them to have in place a health and welfare Lasting Power of Attorney (LPA).

What is a health and welfare LPA?

A health and welfare LPA ensures that the people you choose, be that your partner, family member or a trusted friend, understand your wishes and can make decisions on your behalf when you lack the mental capacity to make these yourself. Without one, your relatives may be unable to make critical decisions regarding your health and welfare.

Many people will have made an LPA regarding their property and financial affairs but will not have appreciated the importance of putting legal documents in place for their health and welfare.

Why should I have a health and welfare LPA in place?

If you lose mental capacity and don’t have a health and welfare LPA in place, social workers and medical professionals will act in what they believe to be your best interests. However, this, of course, may not reflect what you would want.

A health and welfare attorney has the power to make decisions on your behalf about your daily routine, medical care, moving into a care home and life-sustaining medical treatment. It can allow you to sleep easy in the knowledge that your wishes will be respected and that your loved ones will not have to suffer additional stress on top of an already difficult situation.

What happens if I don’t have a health and welfare LPA in place?

If you don’t have an attorney to make decisions for you, the wishes of your family may be overruled by social workers and doctors.

If a family member wants to ensure they are involved in making those decisions for you, they will have to apply to the Court of Protection for a deputyship order. However, this process can be stressful, expensive and time-consuming.

The best plan, therefore, is to consider making and registering your health and welfare LPA now while you’re fit and healthy as a precaution in case you lose capacity in the future. This will mean the people you have chosen as your attorneys will be able to speak on your behalf if you’re not able to do this for yourself.

What if I made an Enduring Power of Attorney?

If you have made a property and finance LPA or, as it was previously known, an Enduring Power of Attorney, the people you have appointed will only have the legal authority to deal with your property and financial affairs on your behalf if you lose mental capacity to make decisions.

However, these documents do not give your attorneys legal authority to make decisions regarding your health and welfare – including where you are to live and what medical treatment you are to receive or not to receive.

If you are able to make these decisions for yourself, you can’t delegate this authority to anyone else. If, however, you have lost mental capacity to make these decisions, you need to have a separate health and welfare LPA in place to enable the people you have appointed as your attorneys to make these decisions on your behalf.

How do I make a health and welfare LPA?

To be effective, the LPA must be put in place while you still have mental capacity and has to be registered with the Court of Protection. The registration process usually takes about two to three months to complete.

When making a health and welfare LPA, you choose the people you would want to be able to speak to social care and health care professionals on your behalf if you were not able to do this for yourself.

You have to state whether or not you wish your attorneys to be able to make decisions on your behalf regarding life sustaining treatment, and, if you wish, you can include guidance and/or instructions to your attorneys.

health and welfare LPAHow can Nelsons help?

Jane Sutherland is a Partner in our expert Wills, Trusts & Probate team.

For more advice or information on creating a health and welfare LPA, please contact Jane or a member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.

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