’tis our fast intent To shake all cares and business from our age, Conferring them on younger strengths while we King Lear set about putting his affairs in order in his eighties. This article looks at what farmers might need to...
An LPA relating to health and welfare is a legal document that allows your attorney(s) to make welfare and health care decision on your behalf ONLY when you lack mental capacity to do so yourself.
An LPA is a very important document which allows you to plan in advance for the decision you want to be made on your behalf if/when you lose capacity to make them yourself, the people you want to make these decisions and how you want the people to make these decisions.
A registered health and welfare LPA lets the people you have chosen as your attorney(s) make decisions about the following:
1. Giving or refusing consent to particular types of health care, including medical treatment decisions. It can extend, if you wish, to authorising them to give or refuse consent to the continuation of life sustaining treatment.
2. You staying in your own home, perhaps with help and support from social services.
3. You moving into residential housing and choosing the right care home for you.
4. Day-to-day issues like your diet, dress or daily routine and deciding who may have contact with you.
Once a health and welfare LPA has been registered, your attorneys can only make decisions for you when you lack mental capacity to make the decisions yourself.
The health and welfare LPA does not allow the attorney(s) to manage your finances, access your accounts or arrange benefits for you. A separate Lasting Power of Attorney dealing with Property and Affairs will be needed.
Is a health and welfare LPA always necessary?
The Code of Practice issued with the Mental Capacity Act contains a set of examples as to when one might be appropriate:
a. if it is anticipated that a series of linked welfare decisions may have to be made over time which could otherwise involve a series of individual applications to the Court.
b. If there is a history of family disputes or past family actions which could have a detrimental effect on the person’s best interests being followed.
c. If there is a risk of harm if the person is left under other’s care which would need monitoring, or if a decision needs to be made as to where they live now and in the future.
If the reason to make a health and welfare LPA is predominantly to provide guidance regarding life sustaining treatment or refuse certain medical treatment then the appropriate document is not an LPA but a ‘Living Will’ also called an ‘Advance Directive’.
If you have made an Advance Medical Decision/Living Will/Advance Directive and wish to make a health and welfare Lasting Power of Attorney, you must be careful that they do not cancel each other out.
If you wish your attorney’s to make decisions about life sustaining treatment, then you should sign Option A on the LPAHW form. This will override your Advance Medical Decision. If you subsequently make an Advance Medical Decision it will take priority over your LPA. A health and welfare LPA made after an advance decision will make the advance decision invalid if the LPA gives the attorney authority to make decisions about the same treatment.
If you do not want your attorneys to make such decisions and would rather your Advance Medical Decision stands, you should sign Option B on the LPAHW form stating that you so not wish your attorneys to make these decision on your behalf. Your Advance Medical Decision will take priority.
Where a person makes a health and welfare LPA (regardless of whether it provides authority to give or refuse consent to life-sustaining treatment) and subsequently makes an advance decision, which is valid and applicable in the circumstances, the advance decision takes priority.
Please contact us to discuss your personal circumstances and we can advise you on what is best for you.