Health and Welfare Lasting Power of Attorney

The recent case of NHS Trust v Y 2018 UKSC 46 has highlighted the importance of a health and welfare Lasting Power of Attorney.

In this case, the UK Supreme Court unanimously decided that doctors could switch off life support for a patient in a continued vegetative state if his family agreed (which they did), without having to refer to the Court of Protection first, and dismissed an appeal from the Official Solicitor’s.

Previously, standard procedure in UK hospitals was that an order needed to be made to the Court before medical professionals could withdraw clinically assisted nutrition and hydration (CANH) for a irreversibly unconscious patient. However, in this instance, the doctors only had to take into account the expressed wishes of the patient, his close family and the opinions of the medical team treating him, and did not have a strict legal obligation to apply to the Court.

What is a Health and Welfare Lasting Power of Attorney?

Many people will have made Powers of Attorney regarding their property and financial affairs but will not have appreciated the importance of putting in place Powers of Attorney regarding their health and welfare.

If you have made an Enduring Power of Attorney or a property and finance Lasting Power of Attorney, then the people you have appointed as your attorneys will have legal authority to deal with your property and financial affairs on your behalf. Usually, these are set up so that your attorneys can act either if you still have mental capacity to manage your own financial affairs but wish them to deal with these for you, or if you have lost mental capacity to manage your own financial affairs.

However, these documents do not give your attorneys legal authority to make decisions regarding your health and welfare, such as where you are to live and what medical treatment you are to receive or not receive. If you are able to make these decisions for yourself, you cannot delegate this authority to anyone else. If however you have lost mental capacity to make these decisions then you do need to have a separate health and welfare Power of Attorney in place to enable the people you have appointed as your attorneys to make these decisions on your behalf.

Things To Consider

To be effective, a health and welfare Lasting Power of Attorney must be put in place while you still have mental capacity and has to have been registered with the Court of Protection, a process which usually takes 2 to 3 months to complete.

When making a health and welfare Lasting Power of Attorney, you choose the people you would want to be able to speak on your behalf to, e.g. social care and health care professionals, 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.

What Happens If You Don’t Have A Health & Welfare Lasting Power of Attorney In Place?

If you don’t have a health and welfare Lasting Power of Attorney in place and you lose mental capacity to decide for yourself, then the social workers and doctors will act in what they believe to be your best interests. This of course may not reflect what you would want.

They will usually decide what is in your best interests in consultation with your family. But you may not have any family or the person you consider to be your “next of kin” may not be recognised as such. Your family may disagree between themselves as to what you would want or what is in your best interests. If you do not have an attorney to make decisions for you, the
wishes of your family may be over-ruled.

The best plan therefore is to consider making and registering your health and welfare Lasting Power of Attorney now whilst you are 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 are not able to do this for yourself.

How Can Nelsons Help?

Jane SutherlandHealth and Welfare Lasting Power of Attorney is a Partner in Nelsons’ expert Wills, Trusts & Probate team.

For more advice or information on creating a Power of Attorney, please contact Jane or a member of the team on 0800 024 1976 or contact us via the online form.