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Who has the final say if you no longer have capacity?

There may come a time in your life when you don’t have the mental capacity to make or communicate your own decisions concerning your health and welfare and you may need someone else to make these decisions for you.

A Lasting Power of Attorney is a legal document that enables one person (the Donor) to appoint another (the Attorney) to look after them by acting on their behalf. In particular, a Health & Welfare LPA enables the Donor to appoint an Attorney to make decisions affecting their health and welfare. This type of LPA came into effect under the Mental Capacity Act 2005 (MCA 2005).

When can I use the LPA?

Like all LPA’s the Health & Welfare LPA must first be registered with the Office of the Public Guardian (OPG) before it can be used. In addition, a Health & Welfare LPA only comes into effect upon the mental incapacity of the Donor.

What decisions can an Attorney make?

The Attorney can make general decisions such as who the Donor sees, where they live, as well as decisions relating to medical treatments. Such decisions on medical treatment can, if the Donor wishes, relate to end of life decisions.

Whilst an Attorney acting under a Health & Welfare LPA does not have authority over money and property, they may need to work with an Attorney appointed under a Property and Affairs LPA. The two Attorneys can be the same person.

What decisions can an Attorney consider?

The Attorney must assume you can make your own decisions, and help you make those decisions, unless they establish that you cannot do so. If you cannot make these decisions then your Attorney should act in your best interests and in a way that is less restrictive of your rights and freedoms.

What regulations bind the Attorney?

An Attorney must follow the principles of the Mental Capacity Act 2005 which are set out in a Code of Practice. In particular, they should act in your best interests taking into account all the relevant circumstances. This would include consulting with you and any others who are interested in your health and welfare.

What happens if there is no Health & Welfare LPA in place and a decision needs to be made?

An application would need to be made to the Court of Protection (COP) to appoint a Deputy to make decisions for you relating to your welfare. This is an expensive and time consuming process and a high percentage of applications fail unless there is an ongoing dispute i.e. with Social Services.

Alternatively, all too frequently, Social Services departments are endeavouring to make decisions that they consider to be in someone’s best interest. Section 5 MCA 2005 allows this to happen, but also absolves the decision maker from liability. Social Services departments ability to use section 5 would be limited where a Health & Welfare LPA exists, or where a Personal Welfare Deputy has been appointed.

Who can make that decision?

The COP will first of all decide whether you have mental capacity to make decisions yourself. If not, then it will decide whether the person applying to be a Deputy would be suitable to act in your best interests. The person appointed may not necessarily be a person of your choice and it is possible that the Local Authority or Social Services could be appointed as a Deputy.

What can I do if I disagree with that decision?

If your family are unhappy with the appointment of the Deputy then they have the right to raise objections with the COP. If you have lost capacity, or your capacity fluctuates, then the matter will be out of your hands.

What about end of life decisions?

A Health & Welfare Attorney can, if authorised by the Donor, make end of life decisions on behalf of the Donor. This aspect of the MCA 2005 caused the most controversy as the Act went through Parliament.

The Donor can authorise the Attorney to make end of life decisions about ongoing medical treatment. The Form however does not go into much detail on this, albeit that conditions and guidance can be inserted into the LPA itself.

Can a Health & Welfare LPA lead to euthanasia?

No. The Act is very specific on this point and it does not authorise euthanasia.

What is the role of the COP and Office of the Public Guardian (OPG)?

The OPG works closely with the COP to make sure that the best interests of people who lack mental capacity are served. The COP provides the decision making functions and the OPG provides regulation and supervision.

Why is it important to make a Health & Welfare LPA?

Primarily YOU choose who helps you if decisions about your welfare need to be made. There is no automatic right that your family can do so. If there is the likelihood of a disagreement amongst the family then stating in advance who does what is helpful given that the Local Authority or Social Services can also try to make these decisions.

When is there likely to be a conflict with Social Services and families?

Typically, this could arise over decisions on hospital discharge either to go back home or into a Nursing/Residential Home; or the patient wants to go home and Social Services think that this is unsuitable; or there is a question over the choice of the home and available care.

By signing a Health & Welfare LPA you make it easier for someone to represent your wishes.

For further information on Lasting Powers of Attorney both Health & Welfare and Property & Affairs please contact our Wills, Trusts & Probate team on 01733 882800 or email [email protected].

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