Health and Care Lasting Powers of Attorney
If you wish to make your wishes as to medical care known, but do not wish to appoint a Health and Care attorney, then an Advance Decision (often referred to as a “living Will”) may be the best option for you. Please ask us for our Information Sheet on Advance Decisions.
You should advise us if you already have an Advance Decision in place as this might be affected by a Health and Care LPA. Health and Care Lasting powers of attorney
What are they and why should you consider making one?
A Health and Care Lasting power of attorney (LPA) is a legal document that enables anyone aged 18 or over to choose people that they trust to make decisions on their behalf as to their health, care and general welfare if they become incapacitated. The person making the LPA is known as the donor and the persons appointed to act are called “attorney(s)”.
What powers can be granted under a Health and Care LPA?
A Health and Care LPA can grant your attorneys powers to deal with all matters related to your personal welfare. This includes important decisions such as the type of medical treatment that you receive and where you live. It also governs day-to-day matters such as your daily routine and your diet. It does not, however, give your attorneys power to deal with your finances, pay your bills or make decisions as to whether your property should be sold. If you wish your attorneys to be able to make decisions relating to your finances, as well as your health and care, then you will need to draw up a Property and Financial Affairs LPA. We would always advise that you enter into a Property and Financial Affairs LPA at the same time as a Health and Care LPA.
Can a Health and Care LPA give my attorneys power to decide whether I should receive life sustaining treatment?
Yes. You have the ability to indicate in the LPA whether or not your attorneys are to have power to refuse life sustaining treatment or to consent to such treatment. It is also possible within the LPA to express your preferences as to this or other matters affecting your health and care. You could, for example, express the preference that if you have a degenerative illness that your attorneys should refuse medical treatment that would prolong your life. Your attorneys would not, however, be able to compel your doctors to give you treatment specified by them.
How is a Health and Care LPA created?
There are strict formalities around the creation of any LPA. They have to be created on the specified forms and someone known as a “certificate provider” is required to certify that you understand what you are doing and have the necessary mental capacity to enter into the LPA. Once the LPA has been created it must be registered with the Office of the Public Guardian, a process that takes some weeks.
What happens if I do not have a Health and Care LPA?
In those circumstances, in so far as you are not able to make a particular decision because you lack mental capacity, most decisions as to your care and welfare will be made by the professionals looking after you (for example, social workers or medical staff) having taken into account the views expressed by your family. In some very limited circumstances an application might need to be made to the Court of Protection for an order in relation to a particular aspect of your care.
If you have particular views as to your care if you were to become incapacitated, have no family who could express those wishes to your carers, or you are doubtful about their ability to make your views known then it is particularly important that you consider a Health and Care LPA.
Capacity to make an LPA
The Mental Capacity Act 2005 states that in order to have capacity to make an LPA:
- you must have all the relevant information;
- you must be able to retain that information; and
- you must be able to weigh it up to arrive at the decision to make the LPA.
You must also be able to understand the foreseeable consequences of making or not making the LPA or making it in different terms. For example, someone who has recently been diagnosed with a degenerative condition such as dementia should be able to understand that if an LPA is not put in place, and they subsequently lose capacity, it might be necessary for a court application to be made for a Deputy to be appointed to deal with their affairs.
The Office of the Public Guardian’s rather lengthy booklet (“Guidance for people who want to make a Lasting Power of Attorney”) confirms that you should be able to understand at the very least:
- what an LPA is;
- why you want to make it;
- who you are appointing as attorney;
- why you have chosen that person or those people to be appointed; and
- what powers are being given to the attorney.
Every LPA has to be signed by a certificate provider who has to certify that you understand what you are doing and so he or she will need to be satisfied that you can understand this information. If the certificate provider feels unable to provide the necessary certificate, or you are unsure about the capacity of a relative who wishes to make an LPA, then it would be advisable to ask a medical professional, social worker or other suitably qualified person to assess your or your relative’s capacity to make an LPA.
Our Pricing and Service
H & C Lawyers have a wealth of experience in advising private clients and their families and offer a range of services from preparing any LPA (including acting as certificate provider) to a fully professional attorneyship service in certain circumstances.
Usually most clients will instruct us to prepare their LPAs at the same time as reviewing their Wills and Estate Planning. Please see our “Making A Will Factsheet” for more cost information.
However, our costs start at £595 plus VAT for preparing a Financial LPA (excluding OPG Registration).
For more information on this or any other private client matter please contact: –
Stephen C Haggett, Director
Tel: 01822 614461