Last week, the BBC reported on the story of a woman who lost her husband following an electric skateboard accident and the significance of her husband having in place a Health and Welfare Lasting Power of Attorney. Having the legal document in place meant that she could make decisions regarding her husband’s medical treatment when he was unable to do so, instead of the treating hospital.
Bradley Visser
Bradley Visser was involved in the accident near his home in Oxfordshire in July this year and suffered a severe traumatic brain injury. After receiving medical treatment for six days following the accident, he developed double pneumonia and sadly died.
Before the accident, Bradley Visser had made a Health and Welfare Lasting Power of Attorney appointing his wife, Annie, as his attorney which meant that she could make decisions regarding his medical treatment after he had lost capacity. He had stipulated within the document that his wife should not attempt to keep him alive if certain “life perimeters” were not met, which included him not being able to be a father, provide for his family through employment, and be physically active.
Having the Health and Welfare Lasting Power of Attorney in place meant that Annie Visser was able to present to the treating doctors the legal document which meant she was able to decide his medical treatment in conjunction with his wishes. This meant that following initial medical care his life support machine was switched off and he subsequently died.
Since the death of her husband, Annie Visser has been talking about the importance of people having in place a Health and Welfare Lasting Power of Attorney.
What can a Lasting Power of Attorney cover?
A Health and Welfare Lasting Power of Attorney is a document that is executed whilst you still have mental capacity and appoints people that you trust (be that a friend, relative or professional) to look after your health and welfare if you ever lose capacity. These people are known as your attorneys.
There are two types of Lasting Power of Attorney:
- Health and welfare
- Property and financial
Most people will have heard or possibly even made a Lasting Power of Attorney concerning their property and financial affairs but will not have appreciated the importance of putting in place Powers of Attorney regarding their health and welfare.
With an Enduring Power of Attorney or a Property and Finance Lasting Power of Attorney, you appoint attorneys who will have the legal authority to deal with decisions regarding your property and financial affairs. Usually, these are set up so that your attorneys can act either if you still have the mental capacity to manage your financial affairs but wish them to deal with these for you, or if you have lost the mental capacity to manage your financial affairs.
However, these documents do not give your attorneys legal authority to make decisions regarding your health and welfare, e.g. where you are to live and what medical treatment you are to receive. If you can make these decisions for yourself, you cannot delegate this authority to anyone else. If, however, you have lost mental capacity, such as Bradley Visser had following his accident, 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.
Life-sustaining treatment decisions in a Lasting Power of Attorney
When making a Health and Welfare Lasting Power of Attorney you can choose whether or not you want to give your attorneys the authority to make life-sustaining treatment decisions on your behalf. Life-sustaining treatment is defined as any form of medical treatment (e.g. surgery, medication, or another form of care) to keep a person alive.
In Section 7 of a Health and Welfare Lasting Power of Attorney, you can specify your wishes with regards to life-sustaining treatment which your attorneys should follow. If these wishes are not specified then your attorneys can decide on your medical treatment.
In many cases, you may feel that your appointed attorneys already know your wishes concerning medical treatment and subsequently they don’t need to be listed in your Lasting Power of Attorney.
When instructions are included in a Lasting Power of Attorney, it is important to provide clear and transparent information about life-sustaining treatment decisions, so that your attorneys act in accordance with your desired wishes. If you are unsure of the best way in which to do this then it is vital to seek expert legal advice.
How Nelsons can help
Heidi Korman is a Trainee Solicitor at Nelsons.
If you would like to create a Lasting Power of Attorney or if you would like any further information, please contact Heidi or another member of our Wills, Trusts and Probate team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online form.