A Lasting Power of Attorney (LPA) is a legal document which allows someone you trust (a family member or a close friend) to make decisions for you, or act on your behalf, if you are no longer able to or if you no longer want to make your own decisions.
Lavanya Hart, a solicitor in our Wills and Probate Team, explains what LPAs are and why they are so important and explains in detail the importance of Health and Welfare LPAs.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a legal document that allows someone you trust (a family member or a close friend) to act for you if you can no longer make decisions by yourself.
There are two types of LPA to consider. You can make a Property and Finances LPA which allows your Attorneys to manage your bank accounts and action any maintenance or sale of your property.
The second type is the Health and Welfare LPA which allows your Attorneys to make important decisions about your health and welfare, such as whether you have an operation and what care you may require.
When is an LPA for Health and Welfare used?
A Health and Welfare LPA can only be used if you are mentally incapable of making your own decisions. In contrast, the Property and Finances LPA can be used if you can still make your own decisions, provided you have given your Attorneys permission to act on your behalf.
What does an LPA for Health and Welfare involve?
The Health and Welfare LPA enables your chosen family member or friend (your Attorney) to make decisions on your behalf regarding your day-to-day care and well-being. Such decisions are important decisions that will affect you when you are most vulnerable.
For this reason, it is important that your chosen Attorney is someone you know and trust. The decisions they will make include (but are not limited to):
- Personal Care and Care Provision – This may involve your Attorney selecting a care home, a care provider, arranging your meals, ensuring your personal hygiene needs are being met and enabling you to take part in any social activities you wish to participate in.
- Medical treatment – This may involve your Attorney making decisions on your behalf regarding your medical care.
- Palliative – This may involve your Attorney making life-sustaining treatment decisions on your behalf or decisions regarding end-of-life care.
Why should I make an LPA for Health and Welfare now?
Putting an LPA in place now will not jeopardise your independence. It is important to note that LPAs cannot be used until they have been registered with the Office of the Public Guardian. They are currently taking around 20 weeks to register LPAs.
If you wait too long, you may find that you are unable to make an LPA or that the LPA is not ready for your Attorneys to use when you need it.
Why should I make a Health and Welfare LPA?
It is sensible to make appropriate provisions for your future care. Putting a Health and Welfare LPA in place can also save your loved ones the upset and frustration of not being able to be involved in your care if you don’t have mental capacity.
Making a Health and Welfare LPA is not just for people approaching old age, it is also helpful for anyone who has been diagnosed with a degenerative illness, which will cause them to lose their mental capacity and their ability to make decisions in the near future.
Whilst making a Health and Welfare LPA may seem unpleasant to contemplate, putting one in place whilst you are in good health is the only way you can be satisfied that you will be looked after in accordance with your personal wishes.
Who should I choose as my Health and Welfare Attorney?
Choosing your Health and Welfare Attorney is an important decision to make. They must be someone you know and trust to make decisions on your behalf regarding your health and well-being when you are no longer able to make these decisions.
You may wish to appoint the same person that you appointed for your Property and Finances LPA. This is because a lot of decisions Attorneys make tend to overlap.
Can I just make one LPA to cover Health and Finances?
A Health and Welfare LPA does not cover decisions about your property and finances. Similarly, a Property and Finances LPA does not cover decisions about your health and welfare. For this reason, it is best practice to set up both types of LPA.
It is sensible to consider appointing the same people for both types of LPA so that the person managing your finances can also easily arrange care for you.
What happens if I don’t have a Health and Welfare LPA?
A Health and Welfare LPA is designed to give your chosen Attorney control when you are no longer able to make decisions for yourself.
If you do not have a Health and Welfare LPA in place and you lose the capacity to make decisions regarding your health and welfare, this could cause a lot of upset and frustration to your loved ones.
If you do not have a Health and Welfare LPA, your family and loved ones will not be able to get involved in decisions concerning how you live or are cared for. This can range from small decisions such as the food you eat and the clothes you wear to big decisions as to what type of care you receive and life-sustaining treatment decisions.
What happens if I left it too late to make a Health and Welfare LPA?
If you are unable to make a Health and Welfare LPA because you no longer have the capacity to do so, the only option available will be for a family member or loved one to ask the Court of Protection to grant an order giving them responsibility for your decision-making.
This is a lengthy, complicated and expensive process which can completely be avoided if you take the steps to make an LPA whilst you are able to do so.
I have been diagnosed with dementia, is it too late to make an LPA?
It is possible to make a Health and Welfare LPA if you have been diagnosed with Dementia, provided you still have the capacity to understand and make decisions when creating the LPA.
You may need to speak to your GP or alternative medical professional to confirm that you have the capacity to make an LPA.
It would also be sensible to make it clear to your chosen Attorneys how you wish to be looked after if you need to receive care or if any medical decisions need to be made.
Can I change my mind about my Attorneys later?
You can change your Attorney for either LPA and remove the Attorney’s authority to make decisions on your behalf, provided you still have the mental capacity to do so.
If you remove an Attorney, you are free to appoint a new Attorney or change the amount or authority an attorney has whenever you please, providing you have the mental capacity to do so.
Can the Local Authority override the LPA?
The Local Authority does not have the authority to overring a valid Enduring Power of Attorney or Lasting Power of Attorney. Your Local Authority Social Services may provide vulnerable adults with support and assistance, but they cannot supersede or disregard the decisions made by an Attorney.
Do I need a solicitor to make a Health and Welfare LPA?
You are able to make and register a Health and Welfare LPA independently, without solicitors. However, it is advisable to obtain professional help from a solicitor when completing a Health and Welfare LPA.
This is primarily because the LPA is a legal document and if it has not been completed correctly, this can cause delays and further costs by the Office of the Public Guardian.
It is also helpful to speak to a solicitor if you have particular religious or cultural requests relating to how you are looked after to ensure these wishes are set out correctly in the Health and Welfare LPA.
How long does it take to register an LPA?
It is currently taking the Office of the Public Guardian 20 weeks to register LPAs. However, the process will take longer if there are mistakes in your application.
As it is taking a long time to register Lasting Powers of Attorney, we recommend putting them in place whilst you are in good health, even if you do not think they will ever be needed.
By putting them in place early on, you can ensure you have taken the time and given consideration to who your Attorneys should be and how you should be looked after without making any rushed decisions.
How do you use an LPA?
If you have made a Health and Welfare LPA, it can only be used if it has been registered and you are no longer deemed to have the capacity to make decisions for yourself.
Your Attorneys would need to activate it by notifying your healthcare providers and hospitals about the existence of the LPA and providing them with a copy. This will ensure that your Attorney will be recognised and involved in any decision-making processes concerning your health and well-being.
When should I register my Health and Welfare LPA?
Once the forms have been correctly completed, you should register the LPA with the Office of the Public Guardian as soon as possible. The Health and Welfare LPA (even once registered) can only be used if you are no longer deemed to have mental capacity.
If the Health and Welfare LPA is not registered until after you have lost mental capacity, this will cause delays as the Attorneys will not be able to act for you until the LPA has been registered. This can cause problems if decisions need to be made quickly, such as whether or not to consent to treatment.
It is also sensible to register your LPA as soon as possible so any mistakes or changes can be made whilst you still have capacity. If you lose capacity before the LPA has been registered and there has been a mistake in the forms, you will not be able to correct the document and the LPA will not be valid.
Who can I speak to regarding LPAs?
Please contact the Howell Jones team on 0800 011 9813 and our friendly private client lawyers will be happy to assist.
