Lasting powers of attorney ("LPAs") came into force on 1 October 2007 under the Mental Capacity Act 2005. There are two types of LPA: property & financial affairs and health & welfare. LPAs replaced the former, narrower enduring power of attorney ("EPA"). EPAs did not allow for attorneys to make decisions relating to the donor's health and welfare and so, through the introduction of the health & welfare LPA, attorneys can now make such decisions.
Health and Welfare LPAs only come into use when the person making the LPA (the donor) has an impairment of their mind or brain which renders them unable to make decisions and voice their opinions. The documents act as an insurance policy for the future, allowing the donor to continue to have a voice through their attorneys, should they lose mental capacity.
Health and welfare attorneys are able to help the donor in a wide variety of ways from assisting with day-to-day care, collecting medication on the donor's behalf and refusing or consenting to medical treatment on the donor's behalf.
It is possible that health and welfare attorneys may need to use the donor's money to care for the donor's physical or mental health by purchasing new clothes or toiletries or paying for transport so that the donor can go out to visit family. If the chosen health and welfare attorneys are not also appointed as property and financial affairs attorneys, then they must ask for money from the donor's property and financial affairs attorney/s. Property and financial affairs LPAs act differently to health and welfare LPAs and therefore, it is important for the donor to have received appropriate advice when their LPAs are made.
Health and welfare LPAs allow the donor to choose who can have the final say regarding life sustaining treatments. Life sustaining treatments include care, surgery, medicine, or other medical help that keeps you alive such as a serious operation, cancer treatment and artificial nutrition or hydration. One option allows for the donor's appointed attorneys to make any final decisions regarding life sustaining treatment while the alternative option enables medical professionals to have this power.
The ReSPECT process (Recommended Summary Plan for Emergency Care and Treatment) was introduced in 2016 and is a summary of an individual's wishes and recommendations for how they wish to be cared for and treated in the event of a future clinical emergency during which they lack the capacity to make and/or express their choices. ReSPECT forms are pertinent when used alongside health and welfare LPAs in assisting medical professionals and attorneys reach medical decisions that respect the wishes and beliefs of an individual and whilst, like many other similar care plans, ReSPECT forms are not legally binding they will be taken into account where it is appropriate.
Family members are the most common choice for attorney and, therefore, the more they know about the donor's health and welfare wishes whilst they have capacity, the easier it makes their role as an attorney should their loved one lose capacity.
LPAs are a very complex area of the law and, if not understood correctly, they can cause potential issues. Therefore, for advice regarding making lasting powers of attorney, please contact our expert Wills, Trusts and Probate team for more information.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
