When you consider preparing a Property and Affairs Lasting Power of Attorney (‘LPA’), you may also wish to consider preparing a Health and Welfare Power of Attorney.
This type of Power of Attorney was not available to make previously, and these type of powers have only been in effect since 2007 when Lasting Powers of Attorney replaced Enduring Powers of Attorney.
A person making a Power of Attorney is known as the Donor.
What is a Health and Welfare Attorney? What do they do?
A Health and Welfare Attorney makes the Health and Welfare decisions on behalf of the person they have Power of Attorney for. They are distinct from a Property and Financial Affairs Attorney and as such do not make property or financial decisions.
Examples of decisions a Health and Welfare Attorney may make include:
- providing consent over a course of medical treatment
- arranging social care and support
- choices over where to receive treatment
- diet, routine and other daily choices
What authority does the Health and Welfare Lasting Power of Attorney give?
A Health and Welfare Lasting Power of Attorney can extend to all or specified matters concerning the donor’s health and welfare, such as giving or refusing consent to medical treatment, arranging social care and support, and can give authority to the Attorneys to decide where the donor lives. Your Attorney cannot sell or buy property on your behalf unless they are also your Property and Financial Affairs Attorney.
Unlike a Property and Affairs LPA, the attorneys appointed by a Health and Welfare LPA are only able to act if you are not able to make decisions on these issues yourself.
How many Health and Welfare Attorneys can I appoint?
The Health and Welfare LPA enables you to appoint one or more attorneys to make decisions about your medical care and welfare generally.
You are able to appoint up to four Attorneys, and four replacement Attorneys if you wish.
Who can be your Attorney?
It is important to choose your attorney’s careful, due to the nature of the powers that you are granting to them. You can appoint any member of your family, a friend or anyone who is willing to act for you, but they must be over 18. If you choose to appoint your spouse as your attorney, and the marriage subsequently breaks down and is dissolved or annulled, the LPA will automatically case unless you have provided for a replacement for that person, or have appointed more than one attorney and provision is made for them to act together and separately.
One of the most important issues to consider when appointing your Attorneys is whether you give your Attorney the authority to give or refuse consent to life-sustaining treatment.
If you decide to give your Attorneys the authority to give or refuse consent to life-sustaining treatment, you will need to sign Option A. If you have prepared a previous Advance Decision, this Advance Decision will not be valid if the Donor has subsequently made a Health and Welfare LPA conferring authority to make decisions concerning the same treatment covered by the Advance Decision.
Advance decisions and refusing medical treatment
If you do not wish to give your Attorneys that authority, you will sign Option B. You may not wish to give your Attorneys that authority as you may have strong views on life-sustaining treatment, and therefore you may wish to prepare an Advance Decision, which reflects your wishes. The medical practitioner in your care will then be required to follow your decision.
The Attorney under a Health and Welfare LPA does not have the authority to authorise euthanasia or assist in the donor’s suicide, which remains a criminal offence.
A donor must have capacity to prepare an LPA and the statutory test is set out in the Mental Capacity Act 2005.
An explanation of the Mental Capacity Act
What is mental capacity?
‘Mental capacity’ is the ability to make a specific decision at the time that it needs to be made. A lack of mental capacity is when a mind or brain problem stops a person making a specific decision when they need to.
An explanation of the Mental Capacity Act
This article has been written with Emily Gould – Trainee Legal Executive at Ashtons Legal
Emily joined Ashtons Legal in 2010 and joined the Lifetime Planning team in 2013. She is an Associate of the Chartered Institute of Legal Executives (ACILEx). Emily specialises in a wide range of private client work, including the preparation and registration of Lasting Powers of Attorney, registrations of Enduring Powers of Attorney, and Will drafting.
Emily is a member of the local Bury St Edmunds Rotaract Club which supports local charities. She has done various career day talks with local schools about the different areas in law.
Ashtons legal serve clients nationwide and are based in Bury St Edmunds.
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