A lasting power of attorney (‘LPA’) is a document which allows a chosen attorney or attorneys to make certain decisions for someone (‘the donor’) who is incapacitated. There are 2 different types of LPA, one for property & finance and one for health & welfare. The rest of this article will focus on the health & welfare LPA.
A health & welfare LPA sets out a person’s instructions regarding their care which would be used if they were to become incapacitated. The LPA confirms who they appoint as attorneys and any preferences or instructions they may have regarding their care or medical treatment. It allows the attorneys to step into the donor’s shoes and speak to doctors and carers as though they were the donor.
Unlike the property and finance LPA, a health & welfare LPA can only be used if the donor has lost capacity.
The health and welfare LPA covers a range of decisions from making sure the donor’s dietary requirements are catered for to making decisions regarding medical treatment. As a health & welfare attorney, you would also be responsible for deciding where the donor would live and if they needed to go in to care.
Given the importance of these decisions, a donor would need to make sure they appoint an attorney who they can trust and who they know would act in their best interests.
It is always advisable to have an LPA in place as it is not only relevant for someone with a degenerative disease, but would also be useful for someone who had a sudden stroke or brain injury. It is for this reason that we recommend that adults of all ages consider making LPA’s. A donor can only make an LPA whilst they have capacity.
The alternative route for a person who is incapacitated but has not made an LPA is for relatives or friends to apply for deputyship through the court of protection. This is a far more lengthy and costly procedure and would be a more stressful process given the fact that deputyship can only be applied for when it is needed. Therefore a health & welfare LPA is crucial in ensuring that the donor’s needs and wishes are met. It is always better to have an LPA and never need it, rather than to not have one and need it.
When a donor is thinking about making an LPA, it is important for them to confirm with their attorneys that they would be happy to act and also to discuss with their attorneys what their thoughts and beliefs are to help the attorneys with their decision making in the future if needed. This may include discussing religious beliefs which would affect decisions regarding medical care or certain dietary requirements such as vegetarianism.
A common misconception is that once an LPA is in use, the donor will not be able to make any of their own decisions anymore. Sometimes the donor will be incapacitated for the foreseeable future, but other times they will be able to understand some decisions and not others. Sometimes a person’s mental capacity wavers, so they may have good days and bad days, and it is the attorney’s role to support the person to make their own decisions where possible. The donor may be capable of making simpler decisions and an attorney may need to help with more complex matters.
The Mental Capacity Act 2005 confirms the following 5 key principles regarding decision making:
1. Your attorneys must assume that you can make your own decisions unless it is established that you cannot do so.
2. Your attorneys must help you to make as many of your own decisions as you can. They must take all practical steps to help you to make a decision. They can only treat you as unable to make a decision if they have not succeeded in helping you make a decision through those steps.
3. Your attorneys must not treat you as unable to make a decision simply because you make an unwise decision.
4. Your attorneys must act and make decisions in your best interests when you are unable to make a decision.
5. Before your attorneys make a decision or act for you, they must consider whether they can make the decision or act in a way that is less restrictive of your rights and freedom but still achieves the purpose.
These principles are also set out at section 8 of the LPA forms. Even after an LPA is in use, the attorney can only act if the donor does not have the capacity to understand and make the decision for themselves.