Talking about yours or a loved one’s wishes should they lose capacity to make their own decisions can often be difficult.
However, there are significant advantages to having these discussions and making provision for someone to make decisions on the person’s behalf, should there come a time when they are unable to make these decisions themselves.
What is a lasting power of attorney (LPA)?
A health and welfare lasting power of attorney (HWLPA) allows the donor (the person making the LPA) to appoint a person or people as attorney(s) to act on their behalf if they were to lose capacity.
The attorney would have the power to make decisions such as where the donor lives and what care and/or treatment they receive (including life-sustaining treatment).
When can an LPA be made?
You can only make an LPA if you have capacity to do so. Capacity is time and matter specific – just because someone may lack capacity to make some decisions, it does not automatically follow that they will lack capacity for all decisions.
Similarly, a diagnosis of a condition known to cause a cognitive impairment (such as dementia) does not in itself mean that someone lacks capacity.
When can a health and welfare LPA be used?
A health and welfare lasting power of attorney can only be used once the donor has lost capacity to take the decision in question at the time it needs to be made (unlike with a property and affairs LPA). The LPA needs to be registered with the Office of the Public Guardian (OPG) before it can be used.
Do the attorneys have to follow the donor’s wishes?
The donor can specify preferences to guide their attorney, as well as instructions which bind the attorney in the decisions they can make. This is helpful if the donor has particular wishes and beliefs they would like their attorney to consider – for example they may want to remain living in their own home for as long as possible, or there might be a particular medical treatment the donor would prefer not to have.
Is there any provision for protection of the donor?
The donor can specify people to be notified when the attorney applies to the OPG to register the LPA. This is a means of letting third parties know that the attorney now intends to act under the LPA.
An attorney is also required to act in the donor’s best interests and must adhere to the Mental Capacity Act 2005 and the associated Code of Practice.
What if someone doesn’t make an LPA before they lose capacity?
It is not possible for someone to make an LPA if they lack capacity to do so.
If a person has not made an LPA and they subsequently lose capacity to make health and welfare decisions, there will be no person with legal authority to make decisions on the person’s behalf.
Depending on the type of decision to be made, responsibility for making the decision will usually lie with social services or the medical professionals involved in the person’s care.
Whilst these people have a duty to consult with the person’s family as part of the decision-making process, the final decision cannot be made by the person’s family or another third party.
It is possible to apply to the Court of Protection for a health and welfare deputy to be appointed for someone who has lost capacity. The Court of Protection will however only appoint a deputy to manage a person’s health and welfare in very limited circumstances and the application can be a costly and lengthy process.
What are the advantages of making an LPA?
- The donor gets to choose who they want to act as their attorney – they can appoint an attorney who they trust and who they would be comfortable with making important decisions on their behalf.
- The donor can express preferences or specific instructions for the attorney to follow – they have the comfort of knowing that their wishes will be respected.
- Decision making is not left to third parties who may have had very little or no prior involvement with the person to date.