There are two types of lasting power of attorney, or LPA. One for health and welfare and the other for property and financial affairs. A health and welfare lasting power of attorney allows you to appoint one or more people to make decisions relating to your health and personal welfare if you lose the capacity to do so. If you create an LPA, you are called the donor. Those you appoint to make decisions on your behalf are your attorneys, who must act in your best interests. Attorneys can be family members, friends, or professionals like solicitors.
When does a health and welfare lasting power of attorney take effect?
A donor can only make a health and welfare LPA if they have full mental capacity. An LPA is a future safeguard should you no longer be able to make your own decisions. A health and welfare LPA only comes into effect when you lose the mental capacity to make decisions for yourself. This means that your mental health is such that you can no longer make personal care and medical decisions by yourself. Until that point, you can control and make your own welfare choices about personal and medical care.
A health and welfare LPA has a broad remit; your attorneys can make decisions which include:
- Deciding who you live with
- Deciding where you live, including whether you should move into a care home
- Organising your daily routine and any care plan
- Deciding on life-sustaining treatment and when to consent or refuse treatment
If you lose mental capacity without a health and welfare LPA in place, your family would need to apply to the Court of Protection for a guardianship order to be able to make such decisions.
Appointing attorneys
You can appoint a sole attorney or several attorneys to act on your behalf. They may be family members, friends, or a professional like your solicitor. Attorneys can act jointly or jointly and severally, and it is up to you to decide this when you create and register the LPA.
If attorneys are appointed jointly, then they must always make decisions together. As such, choosing people you know will work well together and who are readily available when needed is essential. An attorney doesn't have to be resident in the UK, but it can sometimes cause practical problems if an attorney lives overseas.
You can also appoint attorneys to make decisions both jointly and severally. This means some decisions are made together, but others (which the donor will specify) individually. This is a good way for a donor to manage areas which may be contentious between the attorneys or keep some decisions personal to one individual attorney.
You can stipulate how the attorneys will act when you register the LPA.
The role of next of kin
Appointed attorneys have the legal authority to make decisions about personal welfare, daily care and medical treatment. Note that your next of kin does not automatically have the power to make such decisions should you lose mental capacity. This is in spite of the fact that your next of kin is probably your spouse or life partner, and you are sure that they know what your wishes would be.
Doctors must always consult your family. But they have no obligation to follow their opinion or suggestions if they don't think it is in your best interests. However, with a health and welfare LPA in place, your appointed attorneys have the legal authority to make decisions on your behalf. These decisions will stand even if they conflict with what medical staff, carers, social workers, or other healthcare professionals believe is in your best interests.
This means that if doctors suggest life-sustaining treatment, which your attorneys know you would never have agreed to, they have the right to refuse this on your behalf. Final decisions at the point you have lost mental capacity and towards the end of your life fall into the hands of your attorneys rather than medical professionals or social services. This is why it is essential only to choose attorneys who know you very well. Typically, attorneys are often next of kin for that reason.
Creating a lasting power of attorney for health and welfare
A lasting power of attorney for health and welfare only applies in England and Wales. There are different rules in Scotland and Northern Ireland. Lasting power of attorney forms are available on the GOV.UK website.
Preparation
An LPA is a powerful document, and you may want to discuss the health conditions that could have prompted it with your GP and other healthcare professionals. You may even wish to take legal advice or other professional advice before proceeding. Consider your choice of attorney or attorneys very carefully and discuss it with them before you make a final decision.
Mental capacity
When the LPA is registered, the donor must have the mental capacity under sections 2 and 3 of the Mental Capacity Act 2005. The British Medical Association has an online toolkit to help assess mental capacity and the GOV.UK website also offers guidance.
Completing the forms
Forms can be completed online or in paper format - the online service is usually quicker. All the attorneys must sign the documents, and their signatures must be independently witnessed and not by each other.
The LPA form requires an additional signature from someone called the 'certificate provider'. This person confirms that the donor is of sound mind, knows what they are doing, and is not being pressured or coerced by one of the attorneys or a third party. The certificate provider must have known the donor for at least two years on a fairly familiar basis. This could be a neighbour, friend, or perhaps the donor's GP or solicitor.
All parties must sign the LPA forms in a specific order, and failure to do this is frequently a reason for the rejection of forms. The donor signs first, followed by the certificate provider and then the attorneys. An independent party must witness all the signatures.
Registering a lasting power of attorney
Once a lasting power of attorney has been created, it has to be formally registered with the Office of the Public Guardian before it is valid and comes into force. You may not need to use the LPA for many years, or ever, but it must be registered before the donor has lost mental capacity. You can register a power of attorney on GOV.UK. It can take up to 20 weeks for a health and welfare LPA to be registered.
There is a registration fee which is £82 as of 2022. If you register a health and welfare LPA and a property and financial affairs LPA, which many people do simultaneously, the total registration fee will be £164. If you are receiving certain benefits or are on a low income, you may be entitled to pay a reduced price. Some people are fully exempt from the payment.
Either the donor or the attorney can apply to register the LPA. There is a standard four-week period to allow any objections to be raised. Upon registration, the Office of the Public Guardian (OPG) will notify the donor that the LPA has been registered. The OPG will return the original document to you or whoever the donor is.
The Office of the Public Guardian
The Office of the Public Guardian is a government body that accepts registration of both types of LPA. They also act as an investigation service for complaints about attorneys' misconduct. The OPG only administers LPAs in England and Wales.
In May 2022, the government announced reforms to improve the efficiency of the service and speed up applications which can take as long as 20 weeks. The government intends to digitalise the process to promote speed and efficiency and boost safeguards to protect vulnerable donors from coercion.
The duties and responsibilities of an attorney
An attorney must always act in the best interests of the donor. This is not without its challenges and may involve putting to one side personal feelings and opinions. This is enshrined in section 4 of the Mental Capacity Act 2005. If possible, the attorney must encourage the donor to be involved in the decision-making process as much as is reasonably practicable. They must consider the donor's current and past feelings and, if unsure, discuss the donor's situation with people who may be able to help or clarify matters. If an LPA includes any advance decisions from the donor
Attorneys are also bound by a duty of care under the LPA to the donor and must follow the donor's instructions. They may not delegate their authority and must keep information about the donor confidential unless the donor agreed it can be shared with appropriate third parties.
Your health and welfare LPA
Having a health and welfare LPA is the only way to ensure that someone you trust can make decisions about your well-being should you lose the capacity to do so.
While your LPA may never need to come into force, having one in place can give you peace of mind your wishes will be followed should you lose mental capacity in the future.
