This guide will help you understand the steps involved in preparing a lasting power of attorney to deal with your health and welfare matters. It outlines the wide scope of information you will need to provide and the choices you will have to make.
Whilst it covers the main points, this guide is not a definite guide to the law and procedure. Further information and discussion may be necessary to provide for your particular circumstances and wishes.
What is a Health and Welfare LPA?
Lasting Power of Attorneys (LPAs) replaced Enduring Powers of Attorney (EPAs) from October 2007. EPAs made before October 2007 are still valid subject to registration with the court if the person granting the EPA has lost, or is losing mental capacity.
The Health and Welfare LPA enables you to appoint someone to act as your attorney and make a wide range of decisions for you – including where you live, how you should spend your day, and authorise or refuse medical treatment to be carried out to you.
Unlike any other Power of Attorney, the LPA can continue to be used once a person has lost the mental capacity necessary to safely manage their affairs. The LPA, unlike other powers of attorney, cannot however be used and is not valid until it is registered with the Court (see section below headed Registration and Formalities).
The Health and Welfare LPA does not allow the attorney 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.
Choice of attorney
This is clearly a personal decision but the person you appoint should be completely trustworthy due to the range of powers you are granting them. The appointment of a single person as attorney obviously creates more risk of the power being abused, and can cause problems (including cancelling the document) if the person appointed dies or is otherwise unable to act. The attorney can be the same or different person (or persons) that you may wish to appoint to deal with your property and affairs.
You should consider whether the person to be appointed has the necessary skills required to make the type of decisions they have to make, such as deciding whether you should be resuscitated or kept alive by machine should your heart fail or should you go into a coma.
How attorney is to act
Your attorney should always act in your "best interest" and cannot act contrary to your instructions whilst you still have the mental capacity to make rational decisions after weighing up the choices open to you.
Is a Health and Welfare Power of Attorney always necessary?
The Code of Practice issued with the Mental Capacity Act contains a set of examples as to when one might be appropriate:
- 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.
- 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.
- 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".
One or two people
If you intend to appoint more than one person to act as your attorney, then you need to consider if you want them to act:
- “together” – which means they must all agree to everything and all sign all documents. This can be difficult if they live a distance apart or if one goes away on holiday;
- “together and independently” – which means that they can act independently with only one signing if need be; or
- “together in some issues and independently in others” – this can cause confusion if it is not clear on the form when they must act together, or if circumstances arise which are not provided for.
Also, if you choose (a) or (c) and one attorney declines to act, dies, divorces (if you appointed your spouse or civil partner) or is made bankrupt, the LPA becomes null and void unless provision for a replacement is made. The law in circumstances (a) and (c) allows the remaining attorney to act alone or allows them to appoint someone to act with them.
If you are appointing more than one person, even if they are to act separately, you need to consider whether there is a risk of a conflict of interest and how this is to be resolved. Such a conflict often arises when the decision to be made is whether you should be kept alive as the two attorneys may have different religious or ethical beliefs.
A common solution could be to appoint your spouse or civil partner as sole attorney, with your adult children or one of them as replacement in the event of your spouse/partner being unable to act. Alternatively you could appoint a close friend to act.
Replacement attorney
These are possible and are recommended. You will need to advise us of who they are to replace if for instance you wish to ensure a member from both sides of your family are always appointed. You also need to decide how they are to act with the existing attorneys or if they are to have the same powers. Usually people select for any replacement to have the same powers as the persons they replace.
Extent of authority
You can give your attorney power to do everything you can presently do in relation to where you want to live, how you spend your day, what you eat or what medical treatment to undergo. Alternatively, you can require them to consult with other members of your family as to what is in your best interests. In order to prepare the lasting power of attorney we will need to discuss with you the careful drafting of any restrictions or conditions to be imposed, and their likely effect in various scenarios which could occur in the future.
You can also set out in the document guidance as to how you wish the attorney to manage your property and affairs or exercise any discretion you give to him. Such guidance may set out your ethical or religious beliefs for instance. Such guidance is however by law subject to the overriding duty of the attorney to act in your “best interest” if that conflicts with the guidance you set out.
We strongly recommend that you set out in your lasting power of attorney any strong religious, moral or ethical beliefs that you have that you want adhered. This could include observing religious holidays or fasts, vegetarian, halal or kosher or other diets, anything you are allergic to, whether you only want to stay in a nursing or care home listed to your religion, or if you will require them to ensure you attend a place of worship or are able to follow your religion every week.
The general rule is that anyone appointed your attorney cannot delegate that authority or power (except for pure administrative tasks or necessity). If you feel that it could be in your best interests for the attorney to delegate certain powers this can be set out in the document.
Life Sustaining Treatment
It is compulsory on the lasting power of attorney to decide whether you wish to give your attorney the right to authorise withdrawal of life treatment. The attorneys can still refuse to undertake the decision when it arises.
If not authority is given then, should the situation arise, the decision whether to give or refuse life sustaining treatment will be made by the doctor. The decision will be made after consulting your attorney and any members of your family they are in contact with about what is in your best interest. Life sustaining means any treatment necessary to sustain life, not just resuscitation or artificial breathing.
If you have made a separate Advance Directive or Living Will the doctors have to normally follow its provisions.
If you do not want specific treatments such as resuscitation or blood transfusions then it is important whether or not you give the attorney authority to decide on life sustaining agreement.
Charging
Individuals or family members acting as attorney are not permitted to recover the cost (including loss of earnings) of the time they spend fulfilling their role, unless you specifically set this out in the document. You therefore need to consider whether the attorney can recover the time they spend carrying out their functions from your finances. If a solicitor or other professional is to be instructed you should discuss with them how they will charge. In the lasting power of attorney you have to confirm the arrangements including any requirements for the attorney to produce accounts, or have their charges reviewed by a third person. We will need to discuss these arrangements with you in detail to draft the appropriate section of the form. Such provisions can minimise the risk of abuse by ensuring that at least the attorney has to provide an account of their actions, failing which any misuse might otherwise go undetected for years.
Registration and Formalities
A compulsory part of the procedure for making an LPA is the requirement that a certificate is provided by a third party who verifies that you have capacity to make the document, understand its terms and that no undue influence is being brought to bear on you.
Without the certificate the LPA is unusable. In order to advise you of the appropriate certificate provider we will need to know of any disputes or conflicts in the family and your general health. We may also need to obtain a medical opinion or involve additional professional assistance, at your cost, if your capacity is failing or if you have problems with communicating generally.
The certificate can be provided by someone who has known you throughout the last two years but is not related to you, employed or in business with you or is not the proposed attorney or involved in any care home in which you reside. Alternatively, a medical or social worker, lawyer or independent medical advocate can provide the certificate. They may charge you for this.
The rules prohibit us from providing the certificate if a member of Anthony Gold is also to be appointed as attorney.
We will discuss the suitability of your proposed choice of certificate provider with you in the course of making the document and any risks of their not having the required knowledge, skills or being around to give evidence if the LPA is later challenged. We will also need to advise you on any further items that can be taken to minimise these risks.
The LPA can only be used once it is registered with the Court of Protection. The Court of Protection charge a fee of £125 for this. As part of the registration procedure, which is not included in our basic charges, notice has to be served on behalf of the attorney on up to 5 people (other than the attorney) you nominate at the time the document is prepared. We will therefore need their names and addresses. These people would be the next nearest members of your family, friends or carers who take an interest in checking that your needs are being met. The reason for having such persons is to ensure that when the application to register is being made, if not being done immediately, those interested in your wellbeing are aware of the application and can raise any concerns.
We recommend that you register the Power with the Court as soon as it has been made for the following reasons:
- If an objection or query is raised by anybody on whom notice is served or the Court, you will be able to provide your explanation as to the decision. If registration is postponed until capacity is failing, or your health deteriorates, you may not be able to express your views.
- The fact that you will be better able to make it clear to the objector your reasons for the decisions may be sufficient to enable the objection to be withdrawn.
- That both the witnesses to your signature and the certificate provider are more likely to be easily traced, still be alive, and be more able to recall the circumstances, thereby saving costs and making it easier to prove capacity.
What to do now
If you have yet to set up an appointment and wish to do so please contact a member of theCourt of Protection team, call 020 7940 4000 or email cop@anthonygold.co.uk
