The importance and usefulness of the Health and Welfare Lasting of Power of Attorney really came into its own during the Covid-19 pandemic.
Many of the elderly and vulnerable members of society had to have decisions made about their welfare and relatives and partners were often shocked to discover that without a Power of Attorney, they could not make important decisions automatically.
Most people believe that a person’s next of kin can make healthcare decisions on their behalf should they become unable to make their own. That is unfortunately not always the case with the law as it stands.
For someone to make formal decisions about another adult’s health, they should have a Health and Welfare Lasting Power of Attorney (LPA) or relevant Court Order such as a Deputyship Order.
Many people were also under the impression that a Lasting Power of Attorney for Property and Finance would be enough for them to make the decisions to support their relatives, sadly this was also not true. A financial LPA is limited to the maker’s property and financial affairs and does not extend to healthcare decisions.
Activating a Health and Welfare Power of Attorney.
Legally the Health and Welfare Lasting Power of Attorney only becomes ‘activated’ when a person loses mental capacity.
The Mental Capacity Act aims to protect and empower people who lack capacity to make their own decisions as far as is possible.
An individual should be encouraged and supported to make their own decision regarding their health. However, if that person is incapacitated then their Attorney will have to choose what course of treatment is given, if any.
As an Attorney, as well as acting in the donor’s best interests, you should also take also take into account the donor’s wishes. For example, if the donor has always said they would not wish to be kept alive indefinitely, then you should take this into account when making a decision about their treatment. It is the view of the person whom you are supporting that is relevant; not your personal opinion.
What happens if there is no LPA in place?
If there is no LPA in place then a decision about what to do will fall to health and social care officials until a court appointed Deputy is in place. Obtaining a Deputyship Order is a complex, timely and costly process to undertake and so an LPA can be a much simpler solution.
Get in Touch
Having an LPA in place allows you to decide who has the control over your health and welfare decisions, should you not be able to make them yourself in future.
For further information please contact our expert Charlotte Fox who is a Private Client Solicitor at Barrett & Co in Reading. Call 0118 958 9711 or email [email protected]
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