Why would I need a Lasting Power of Attorney for Health and Care?
Updated: Mar 5
When discussing Lasting Powers of Attorney (LPA’s) with potential clients, it is often quite easy for them to see the benefits of the Property and Finance LPA. They can see the advantage of having someone close to them dealing with their financial affairs, whether it's accessing their bank account to do a bit of shopping for them, paying bills on their behalf, or even getting involved in buying and selling their property. However, they require more convincing about the Health and Care LPA, perhaps because they can't see the immediate practical benefits or because they don’t want to think about a time when they will lack the capacity to make decisions for themselves.
What does the Health and Care LPA do?
If you have set up an LPA for Health and Welfare, your attorneys can make decisions about anything to do with your health and personal welfare. This includes decisions about medical treatment, whether you can continue to live at home with help from social services or be moved into a nursing home, the type of care you receive, as well as day-to-day things like your diet, how you dress and your daily routine.
You can also give authority to your attorneys to make decisions about whether to give or refuse life sustaining treatment – for instance whether or not you should be resuscitated or kept on life support.
The provision of Social Care is one of the main reasons people will opt for the Health and Care LPA. They trust their family members or friends to make decisions about what is the best care home for them and don’t want that decision to be made by Social Services.
Another reason for setting up an LPA is to avoid conflict between family members. For instance, if you know that your children have different views about nursing home care, then by choosing the child whose views are closest to yours, you can ensure that there is more chance of your wishes being carried out and less danger of there being a conflict when the decisions have to be made.
When does the Health LPA come into effect?
Unlike the LPA for Property and Finance, the Health and Care equivalent can only come into effect once the donor is shown to lack the required mental capacity to make decisions for themselves. This means that you can create the LPA now and it may never need to be used. But if you do lose capacity it will be the people you have chosen, who will best understand your needs, that will make those life decisions for you.
When does someone lack mental capacity?
You lack capacity to make a decision if you cannot do one of these things:
• understand information relating to the decision;
• retain that information for long enough to make the decision;
• take that information into account when making the decision; or
• communicate the decision.
There are many reasons why you could lose capacity. For instance, you may have developed a mental health condition, be suffering from dementia, have had a stroke or suffered a severe brain injury as a result of an accident.
The number of people currently suffering from various forms of dementia in the UK exceeds one million and continues to rise as we live longer. Approximately one in six people over the age of 80 have dementia at any one time.
Who decides when I no longer have capacity?
Being diagnosed with dementia does not mean that you automatically lack capacity. In fact, there is a presumption that a person has capacity unless it is proved otherwise. Before starting to use their power, your attorneys should seek a professional assessment of your condition.
Who should I appoint as my attorneys?
Someone that you trust – usually members of your family or a close friend. You can have up to four attorneys and as few as one, but two is generally a good number. You can also appoint substitute attorneys in case one of your attorneys dies or becomes unable to act.
It is always advisable to have a discussion with your attorneys so that they have a good indication of what you will expect of them.
Can I control what my attorneys can and can’t do?
Creating a Lasting Power of Attorney need not mean that you lose complete control of your affairs. You could list specific instructions in the LPA or insert restrictions to limit your attorney’s powers.
However, we would generally advise keeping such restrictions to a minimum as they can hinder your attorneys ability to act. Remember attorneys must always act in your best interests and the people you've chosen should be the ones you trust the most.
What happens if I lose Capacity and do not have a Health and Care LPA in place?
Your family members and loved ones will not be able to make decisions on how or where you will live or be cared for, or what type of medical treatment you receive. Those decisions are more likely to be made by Social Services or the Medical Profession.
This may be fine in some circumstances but those Professionals will not know you personally and may not understand your specific needs. There may, for instance, be social or religious reasons why a certain type of health care is not appropriate for you.
If your close family wanted to become more involved in your affairs at this stage their only option would be to apply for Deputyship, but this is a long and expensive process and there is no guarantee that Deputyship will be granted. Furthermore the Court could appoint the local authority to act as deputy instead.
If you would like any advice or would like to prepare a Lasting Power of Attorney, please contact Michael Christopher on 07792 869095 or by email: firstname.lastname@example.org.