According to statistics obtained from the Alzheimer’s Society there are over 40,000 people under the age of 65 suffering from some form of Dementia in the UK and with the current environment we live in, nobody knows what might happen to us. Therefore, a Lasting Power of Attorney in relation to your Health & Welfare decisions is just as essential as one to assist with your Property & Financial Affairs.
A Lasting Power of Attorney (LPA) gives another person or persons, referred to as an “Attorney”, the authority to act on your behalf (the “Donor”) if and when you are unable to do so for yourself. Although their introduction replaced Enduring Powers of Attorney (EPAs), these documents in themselves were unable to direct Attorneys in relation to decisions regarding Health and Welfare, instead such wishes were usually written into a Living Will. Like with the Property & Financial Affairs LPA, the Health & Welfare Decisions LPA must first be registered with the Office of the Public Guardian (OPG).
An LPA enables a person appointed as an Attorney to continue acting for you even when mental capacity becomes an issue and/or has been lost. The reason why it is beneficial to register an LPA prior to losing mental capacity, rather than someone making an application on your behalf when capacity has been lost (known as a Deputyship), is that such applications are very expensive and time consuming, something which can cause more distress if time is of the essence. Obviously sometimes this is the only possible option, however it is advisable to put measures in place so that you can feel confident that someone you trust is able to deal with your finances should you not be able to.
This type of LPA allows your Attorneys to deal with a variety of decisions relating to the Donor’s personal welfare and include making decisions about Medical treatment, living arrangements, their day-to-day care needs, the activities they partake in, any provision for social services support and community assistance, as well as the need to access medical records.
However, unlike the Property & Financial Affairs LPA, this particular LPA will only authorise your Attorneys to act on your behalf when you do not have capacity. This can be of a temporary nature, like being unconscious or in a coma, to making decisions on a permanent basis due to a neurological condition like dementia or due to a brain injury following an accident or illness. The Attorneys are obliged under the Principles in Section 1 of the Mental Capacity Act 2005 and the Code of Practice, to help the Donor make as many of their own decisions as they possibly can.
Although there are no restrictions on who can be an Attorney, there is a requirement that the individual is aged 18 years or over when they are appointed, and they must have the mental capacity to act on your behalf. Furthermore, you should only appoint people that you can truly trust to act as your Attorney(s) and usually people will consider individuals who are family members or friends especially in relation to Health & Welfare Decisions LPAs. It is also advisable to appoint individuals who will be geographically close by so that it makes the practicality of acting as an Attorney more straightforward and uncomplicated.
Again, considerations also need to be made about how the Attorneys are going to act. There are three possibilities as to how Attorneys can act. They can act “Jointly” meaning that they all have to act together, however this may be inconvenient for day-to-day decisions. A more practical option is to appoint them to act “Jointly and Severally”, which means that your Attorneys can act together or independently. Not only is this option more practical for day-to-day decisions, it also means that should one of your Attorneys be incapable of acting, the remaining Attorney(s) can continue to do so. The last option is for the Attorneys to act “Jointly for some decisions and Jointly & severally when making other decisions” and provides a compromise between flexibility in relation to day-to-day decisions, yet still ensuring major and the more important decisions are made jointly.
The LPAs provide the Donor with the ability to list preferences and instructions to assist their Attorney(s) with their duties and decision making. This may include the type of Care Facility they wish to be a resident of if required or the types of medical treatment they would be opposed to. However, any instruction or preference which would lead to the Attorney(s) acting unlawfully, such as doing something to end the Donor’s life or assisting in such process, would be ineffective [Source: Legal Update: Case Report, Court of Protection decides on LPA provisions for assisted suicide, multiple attorneys and attorney restrictions: Assisted suicide provisions].
There is a section in the LPA headed “Life-Sustaining Treatment” and asks the Donor to make a decision as to who would they authorise to make such decisions on their behalf – their Attorneys or their Doctors (the Medical Staff). The term “Life-Sustaining Treatment” covers a variety of treatment that doctors would deem necessary in order to sustain the Donor’s life and can include relatively normal decisions such as day-to-day medication for different illnesses and/or conditions, to the more serious decisions required by the Attorneys such as routine or major operations, blood transfusions and organ transplantation, to artificial hydration and nutrition, and even resuscitation. It is for the Donor to decide whether they give their Attorneys the authority to consent or refuse such treatment on their behalf, or whether to leave this decision to be made by Health Care Professional instead.
There have been a string of test cases decided by the Court of Protection (COP) which have raised issues relating to wording in LPAs, particularly in connection with Euthanasia and Assisted Dying [Re DA & Ors]. In this particular case, the COP found that the wording in the LPA which expressed a preference or instruction relating to assisted dying would be invalid as such instruction would lead the Attorney to act unlawfully and it was held that such wording should be removed from the LPA. However, despite debates surrounding the possibility of future changes in the Law, the COP held that such wording surrounding assisted dying should be removed from all current LPAs regardless of such debates as the inclusion of this wording would cause uncertainty and confusion, especially as the position on the Law is impossible to predict.
Sometimes, Donors would rather not authorise their Attorneys to make such decisions on their behalf and instead leave it in the hands of Health Care Professionals for a variety of reasons. It could be that they do not want to cause friction between their Attorneys or place this kind of “burden” on their shoulders. Alternatively, they could be of the opinion of “Doctors know best” and therefore as they are trained, they should be responsible for those decisions rather than a family member. On the other hand, Health Care Professionals are unlikely to know you personally and thus may wish to administer a type of treatment your family knows you would be opposed to. You may therefore believe that as your family (should you appoint them as Attorneys) know you best, they will ensure to voice your views where possible. No matter who you appoint, both sides must take into account the professional medical advice from the Health Care Professionals or the opinions of the Attorneys.
Our Private Client Solicitors can provide a complete service in relation to the creation of an LPA in respect of your Health & Welfare Decisions. Not only are the team happy to explain what such an LPA will enable your Attorney(s) will be do and how they will act, but they are also happy to provide a complete service including acting as your Certificate Provider, which confirms you (the Donor) understand the purpose of the LPA, you have not be unduly influenced and there is nothing preventing the creation of the LPA, as well as drafting the necessary documentation, explaining the LPA to your Attorney(s) and registration with the OPG.
If you require more information on making a Health & Welfare Decisions LPA, please contact Alannah Macdonald in Private Client Solicitor Team at The Sethi Partnership Solicitors.
T: +0044 (0)20 8866 6464
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