29th October 2021
65% of people believe that their next-of-kin will be able to make medical decisions for them if they are no longer able to. But in reality, this is not the case.
Unless there is a Health and Welfare Lasting Power of Attorney in place, then nobody else will be able to make important decisions about healthcare, treatment or living arrangements should capacity be lost, or someone is impacted by a serious illness.
This can be devastating and stressful for families to cope with.
A Lasting Power of Attorney (LPA) is a legal document which appoints someone to take care of important decisions and act on your behalf should you require assistance.
They are particularly useful when someone has dementia and loses the mental capacity to make important decisions or understand the consequences of those decisions. However, they can also be beneficial if someone falls seriously ill, is in a coma, has a major head trauma or suffers a serious mental health issue.
There are 2 types of LPA:
This gives a trusted person power to make important decisions about things such as: medical care, life-sustaining treatment, moving into a care home and daily welfare such as routines, dressing, diet, lifestyle and who you have social contact with.
A Health and Welfare LPA can only be used once someone is unable to make their own decisions anymore.
This gives the appointed person the ability to make financial decisions and manage finances in order to buy or sell property, pay bills, collect benefits or pension, deal with rent or mortgage agreements and make repairs / improvements to property.
A Property and Financial Affairs LPA can be used as soon as it is registered with your permission, you do not have to have lost mental capacity. This can be particularly useful for elderly people unable to leave their property to do their banking or for someone on their own who doesn’t feel comfortable dealing with their financial matters.
Both are important, but in this article, we focus on explaining the benefits of making a Health and Welfare LPA, highlighting some examples of when this is useful for families and issues to be aware of if you do not have one.
It is always sensible to plan for future events. Whilst talking about getting older, losing capacity and death are not the most joyful of dinner table topics – it is very important to have these conversations with your family before it is too late.
Risks and issues with not having a Health and Welfare Lasting Power of Attorney include:
It is wrong to assume that your spouse or immediate family would be able to make decisions for you without the appropriate legal documents.
Doctors, carers, social services, and healthcare professionals will be able to make decisions about medical treatment and care on your behalf. Of course, it is trusted that professionals will make sensible choices, but they may not be in tune with your personal preferences. For example, you may have different view on resuscitation, vaccinations, and organ donation to your doctor.
Should you need to move into a care home or require assisted living arrangements, then you may not get an input into the final decision on where you live. There may be a family member that you would want to live with if you were in a vulnerable situation, a certain town, or a specific care home you would like, but this choice may not be possible unless you appoint someone who understands your wishes.
A trusted, appointed person in your LPA would understand how you lived your life, your personal preferences and social schedule– even down to the style of clothes you wear or the type of diet you enjoy. If the courts appointed someone to make decisions for you, it would be possible that some of your needs or personal preferences would not be taken into consideration.
It is not uncommon for disagreements to cause rifts between family members if there is any question over the care or decisions being made. Making an LPA for your health and welfare allows you to express your wishes and entrust one person or a few people to make decisions based on what you have stated in your LPA.
Should something happen to you and your family need to apply to the Court of Protection to become a Deputy or make arrangements then they will likely need to take some legal advice and make applications which carry fees. It can take some time for applications to be granted and legal affairs to be put in order which can be stressful if urgent decisions need to be made.
If you would like to be prepared, should you lose the capability to take care of your own health and wellbeing, or if you are concerned for your parents or family members, then please speak to someone in our friendly and experienced Private Client Team who can guide you.
Many understand the importance of making a will and taking out life insurance but fail to put in place protection for whilst they are alive via an LPA.
Call our team on 01256 844888, email firstname.lastname@example.org or speak to our online chat assistant who can take your details and arrange for one of our Solicitors to contact you at a convenient time.
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The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.
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