Everybody who makes a Lasting Powers of Attomey - Property & Financial Affairs (LPA-PA) should also make a 'Lasting Power of Attorney - Health & Welfare (LPA-HW) for the following reasons.
lf you care enough about having your property and financial affairs looked after by somebody you have appointed in the event of you being unable to do so yourself, then you ought to care even more about your personal welfare and healthcare being properly looked after by somebody you have appointed if. again. you are unable to look after things yourself An LPA-HW allows you to appoint one or more Attorneys to make decisions on your behalf about your personal welfare and healthcare, including whether to give or refuse consent to medical treatment on your behalf and deciding where you live. These decisions can only be taken on your behalf when you lack the capacity to make them yourself. for example if you are ill, unconscious or because of the onset of a condition such as dementia.
The consequences of not having an LPA-HW are similar to those of not having an (LPA-PA). If for any reason you suddenly become unable to make your own decisions, e.g.
- You suffer an accident and are confined to bed or hospital
- You suffer a more serious accident which permanently incapacitates you
- You become mentally incapacitated as a result of old age or for some other reason
In this case an application has to be made [by a relative or other person close to you) to the Court of Protection. This can take up to 10 months and cost in excess of £1000 to process - during which time no important decisions regarding your healthcare could be made other than by a doctor treating you - and the person eventually appointed to make decisions on your behalf may not be the one who you would have chosen but may even be a Court Official ~ who can (and will) charge every time he/she acts for you.
However, if you do have an LPA-HW, your chosen representatives can make decisions for you straight away if you become unable to make them yourself.
Note that you must be mentally capable to make an LPA-HW. Therefore - just like a Will and an LPA-PA - if you don't have one then by the time you really need one it's too late.
What your Attorney(s) can do will depend on the powers that you give them when making your LPA-PA.
If you include no restrictions in your LPA-HW, then your Attorney(s) will be able to make any decisions regarding your personal welfare that you would have been able to make such as :-
- giving or refusing consent to particular types of health care, including medical treatment decisions
- staying in your own home, perhaps with help and support from social services
- moving into residential housing and choosing the right care home for you
- day~to~day issues, for example about your diet, your dress or your daily routine
However, they cannot just do whatever they like. They will only be able to make decisions that are in your best interests and they will only be able to make them if they are able to establish that you are unable to make them yourself. They must follow the principles of the Mental Capacity Act 2005 Code of Practice at all times when acting.
Additionally, you are able to specify in your LPA-HW whether or not your Attorney(s) are permitted to give or refuse consent to life- sustaining treatment on your behalf. There is a special section for this in the LPA-HW document, which you sign separately when signing the LPA-HW.
What if l already have a Living Will?
If you made an 'Advance Decision' (sometimes known as a living will) before 1st October 2007 then it may still be valid However, you should check that it meets the new rules (i.e. the Mental Capacity Act 2005) - particularly if it deals with life-sustaining treatments More detailed guidance on this is available at http://www.justice.gov.uk/downloads/forms/opg/lpa-guidance-health-and-welfare.pdf
It is highly likely that the best thing for you to do is make an LPA-HW and ensure that your attorneys know your wishes. Your 'Advance Decision' can run alongside the LPA as a guide for your Attorneys or it may no longer be needed.
Finally, the LPA-HW cannot be used until is has been registered at the Office of the Public Guardian (OPG).