Health & Welfare Lasting Powers 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 (LPA), 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 LPA 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 LPA 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 – 3 months to complete.

When making a health and welfare LPA, 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 LPA In Place

If you don’t have a health and welfare LPA 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 have wanted.

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 LPA 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.

Jane Sutherland is a Partner in our Wills, Trusts and Probate team. For more advice about creating a Will, please contact Jane on 0800 0241 976 or email newbusinessteam@nelsonslaw.co.uk