Should you have a Health and Welfare LPA?
A Lasting Power of Attorney (LPA) is a document signed by one person authorising another person to make decisions on their behalf and will remain effective even if the person making the power has lost mental capacity.
LPA’s were introduced in October 2007 to replace the old form of Enduring Power of Attorney (EPA). If you already have an EPA, it will continue to be valid but will not give your attorneys the power to make decisions regarding your Heath and Welfare.
What are the two types of Lasting Power of Attorney?
There are two types of LPA available, a Property and Affairs LPA and a Health and Welfare LPA.
The Property and Affairs LPA allows you to appoint someone to manage your financial affairs, including property and money.
However, the powers that you can grant under a Health and Welfare LPA were not available before October 2007.
A Health and Welfare LPA allows you to choose someone to make decisions on your behalf relating to your personal healthcare, welfare and medical decisions, day to day things like your diet, dress and daily routine and including giving power to give or refuse consent to life sustaining treatment.
Your attorney under a Health and Welfare LPA can only act if you are incapable of making the decision in question.
How do I make a Health and Welfare LPA?
The first thing you should consider is whom you wish to appoint. You would then need to decide, after discussion and thought, what instructions and preferences you might wish to include. Preferences are not legally binding where as instructions will be legally binding.
Example of Instruction 1 ‘I do not want to be kept alive in an unconscious state. I would not want to be resuscitated or kept alive artificially if there is no realistic prospect of recovering to have a reasonable quality of life.’
Before your Attorney can use the LPA it will need to be registered with the Office of the Public Guardian.
What if I lose capacity and I have not made a Health and Welfare LPA?
If you lose capacity to make decisions for yourself and you have not yet made a Health and Welfare Lasting Power of Attorney, a third party, usually a friend or relative could apply to the Court of Protection for a Deputyship Order.
This process is much more time consuming and costly, and does not allow you to make a choice yourself as to whom you wish to deal wit your affairs.
Health and Welfare Deputy Orders are granted much more sparingly then Property and Affairs Deputy Orders and many are rejected by the Court.
Please note: The contents of this article are intended as guidance to the general principles. No action should be taken without taking further advice specific to your situation.
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