What is a Lasting Power of Attorney?

It is a detailed legal document (also known as an LPA) which allows you (known as ‘the Donor’) to appoint someone you know and trust (known as ‘an Attorney’) to make decisions on your behalf should you become unable to do so in the future. A Donor can appoint one or more Attorneys. An Attorney must always act in the best interests of the Donor. This article, concentrates on the Health and Welfare Lasting Power of Attorney.

There are two types of Lasting Powers of Attorney for decisions about:

  1. Health and Welfare  
  2. Property and Financial Affairs

If your Lasting Power of Attorney is for your health and welfare, your Attorney(s) can’t make decisions about your money, pay your bills or organise your pension. If your Lasting Power of Attorney is for your financial decisions, they can’t make decisions about your medical treatment, care or daily routine.

This article, concentrates on the Health and Welfare Lasting Power of Attorney only and why it is such an important document to have in place, to help you and your loved ones, if you lose the ability to make your own decisions in the future.

What decisions can be made by your attorney on your behalf with a Health and Welfare Lasting Power of Attorney?

A Lasting Power of Attorney for Health and Welfare can give your Attorney(s) the authority to make decisions about:

  • your daily routine such as washing, dressing, exercise and your diet
  • medical and dental treatment
  • giving or refusing consent to medical treatment
  • staying in your own home and getting support from social services
  • moving into residential care and finding a good care home

Can you control the decision-making power given to an Attorney?

The Lasting Power of Attorney allows you to set out ‘preferences’ you would like your Attorney(s) to be aware of when making decisions for you. Preferences are non-binding wishes that your Attorneys should keep in mind. They will provide them with some guidance to help them make the best decisions for you.

Here’s some examples:

“I would like to have weekly haircuts and manicures.”

“I would like to continue to go to the theatre”

“I would like to have regular dental, hearing and eye check ups”

“I would prefer to live in Rochdale.”

You can also set out ‘instructions’ in your Lasting Power of Attorney. Instructions are legally binding and your Attorney(s) must follow them.

Examples are:

“My attorneys must ensure I am only given vegetarian food.”

“My attorneys must not decide I am to move into residential care unless, in my doctor’s opinion, I can no longer live independently.”

When does the Lasting Power of Attorney come into effect?

A Health and Welfare Lasting Power of Attorney must be registered before it can be used. We recommend that you register your lasting power of attorney with the Office of the Public Guardian (OPG) as soon as it has been made so it’s ready to be used if needed.    It will only come into effect though if you lose mental capacity. Until then, you make all your own decisions and manage your own health and care. 

What is the cost to register a Lasting Power of Attorney?

A registration fee is payable to the Office of the Public Guardian (OPG) when the Lasting Power of Attorney is submitted to them. The current cost is £82 per Lasting Power of Attorney. If you receive benefits or are on a low income, you may be eligible for a whole or part fee remission meaning that you could pay a reduced fee or no fee at all to register your Lasting Power of Attorney. 

How long does it take to register a Lasting Power of Attorney?

Registering a Lasting Power of Attorney with the OPG can take several months. Currently the OPG are really busy and it’s taking up to 20 weeks to register Lasting Powers of Attorney so it’s important to make your documents and get them registered as soon as possible.

What are the consequences of not having a Health and Welfare Lasting Power of Attorney?

It is a common misconception that aHealth and Welfare Lasting Power of Attorney is only needed for those that are of an older age. The reality is that you could lose the ability to make decisions for yourself at any time in life. Mental capacity could be lost in an instant due to a serious accident or stroke or maybe over a period of time due to a degenerative condition such as Alzheimer’s.

If you lose mental capacity and there is no Health and Welfare Lasting Power of Attorney in place, your family and friends will not have automatic authority to make decisions on your behalf with regards to your health and welfare. Instead, others could make decisions for you and the decisions made may not be what you would have wanted. Social services could decide where you live and what care you receive, or doctors may make decisions for you and you may be resuscitated against your wishes. Having decisions made by strangers about such a personal thing as your health and care gives rise to uncertainty for you and your loved ones.  It can cause disagreements between family members and professionals about what is best for you and unnecessary stress and upset at a difficult time.

Is there a way for someone to make decisions on my behalf after I have lost capacity if I do not have a Health and Welfare Lasting Power of Attorney in place?

If you have lost capacity to make your own decisions and you haven’t made a Lasting Power of Attorney, a friend or family member can apply to the Court of Protection for permission to be a Deputy for you and make decisions on your behalf. However, the Court are  particularly reluctant to approve a deputyship for a person’s health and welfare and will only appoint a personal welfare deputy in the most difficult cases for example, where the person is at high risk of abuse or when there is a need for someone to make a series of linked welfare decisions over time.  The process can take several months and is very expensive. It’s far cheaper and more effective to make your Lasting Power of Attorney now, just in case you need it and before it’s too late.

We’d love to help you. For further details and more information please call Fiona on 07799 213 721 or email fiona@willsandwisheslegal.co.uk.

We can help you with Wills, lasting powers of attorney, trusts, executor assistance for probate and document storage.

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