Why Everyone Should Have A Health & Welfare Lasting Power Of Attorney

Many underestimate the importance of having a Health and Welfare Lasting Power of Attorney (“LPA”) and they tend to concentrate on the Property and Financial Affairs LPA. This has mainly been due to the fact that it is assumed that should any important decisions be required to be made in relation to a persons’ health and welfare, and the individual concerned lacked capacity, then their family would be consulted by the relevant professionals prior to a decision being made. However, it has recently become more apparent that that is not always the case unless this form of LPA is in place.

What if you lose mental capacity without having made a health and welfare LPA? 

The stance of local authorities is inconsistent and therefore there is no guarantee that the important opinions of family members and friends will be given the weight that you may have wished. It is becoming increasingly apparent that the opinions and decisions of the professional involved may overshadow any important views of family and friends.

Unlike those who do not have a Property and Financial Affairs LPA in place, where a Deputyship order can be obtained from the Court of Protection granting authority to deal with issues should a person lose capacity, albeit at a greater cost; if someone loses the capacity to make decisions in relation to their health and welfare it is almost impossible for a family member, friend or professional to obtain a Deputyship Order from the Court of Protection.

The Court of Protection is able to appoint a Deputy in relation to a person’s welfare decisions, however the Court is reluctant to do so in any circumstances other than the most difficult cases and in most cases the Court would prefer to make a one off decision rather than appointing a Welfare Deputy. The cost of each Court application can be staggering. Therefore if you wish to specify a particular person to make decisions on your behalf in relation to your health and welfare it is essential to have a Health and Welfare LPA in place.

What if you lose capacity and need to go into a care home, who makes the decisions for you then?

It can become quite difficult for family members to make decisions when someone has a primary health need. A primary health need is determined following an assessment of your health, in which they look at various aspects including your behaviour, breathing and consciousness and assess the level of severity of each. If you are assessed as having a primary health need, the NHS has a duty to be responsible for your health and social needs, which also includes your accommodation. A situation can therefore arise where your next of kin and the opinions of the NHS regarding your needs could be conflicting. In such a situation if no Lasting Power of Attorney for your Health and Welfare is in place, the NHS or social services would have the upper hand. This could result in you being placed in a care home for example, which may not be the preferred choice of your family, but they have no legal power to intervene.

It is important to put a health and welfare LPA in place if you are worried that at some point in the future, when you no longer have mental capacity, your views might be ignored or overridden. Those dealing with you might take an unexpected view as to what is in your best interests. As an example Cardiff County Council went to Court to stop a care home resident going on holiday. Shortly before the lady went into care she and her partner had booked a Mediterranean cruise. The local authority, as owner of the care home, decided that it was not appropriate for the lady to go on the cruise. The matter fell to be decided by the Court of Protection. The judge felt that the decision as to whether or not to take a holiday was a relatively minor one and that the lady in fact still had sufficient mental capacity to make a decision on this particular point. The judge further decided that even if the lady lacked mental capacity it was still in her best interests for her to go on what might well prove to be her last foreign holiday. If the lady had completed a health and welfare LPA then a Court application would have been unnecessary as her attorney would simply have been able to make the decision for her as to whether or not she should take a holiday.

An expensive and stressful Court case would have been easily avoided.

The following are the types of decision that your attorney can make for you under a Health And Welfare LPA once you become incapacitated:

- where you should live and whom you should live with;

- your day-to-day care including choice of food and clothing;

- consenting to or refusing medical examinations and treatment on your behalf;

- making arrangements for you to be given medical, dental or optical treatment;

- assessments for and provision of community care services;

- whether you should take part in social activities, leisure activities, education or training;

- right to access personal information such as your health and social care records; 

- complaints about your care or treatment.

For more information on Lasting Powers Of Attorney contact:-

Gary Taylor

Director

Progressive Wills Ltd.

Tel: 01254 813744

Mobile:- 07543238543

Email:- progressivewills@gmail.com