Lasting power of attorney for Health and Welfare

family group

The Lasting Power of Attorney for Health and Care Decisions allows someone to make decisions on your behalf, if you have lost mental capacity.

These might include decisions on:

  • what medical treatment you receive, such as life-sustaining treatment.
  • day-to-day matters such as your diet, dress or daily routine.
  • giving or refusing consent to health care.
  • staying in your own home and getting help and support from social services.
  • moving into a nursing home (residential care) and finding a good care home.

Often people refer to this document as the ‘Lasting Power of Attorney for Health and Welfare’. As this is more commonly used, this is the name we have adopted in this guide. We have also occasionally used the abbreviation ‘LPA’ to mean ‘Lasting Power of Attorney’.

Q: Who can be a Donor?

In the Lasting Power of Attorney for Health and Welfare, you are referred to as the ‘Donor’. Essentially, the question is, who can complete a Lasting Power of Attorney?

The Donor (you) must be aged 18 or older, and must have mental capacity. Mental capacity means that you can make decisions for yourself.

If you are looking to make a Lasting Power of Attorney for someone who has lost mental capacity, stop – it is too late. Instead, you need to look at getting a Deputyship Order.

Q: What if I live in Scotland, Ireland or Northern Ireland?

An LPA is for England and Wales only. There are different arrangements for other countries. You may wish to seek advice if you live outside of England or Wales, or if you plan to move outside of England or Wales.

Attorneys

Q: Who should I choose as my Attorneys?

Your Attorneys are simply the people you have chosen to act for you, should you lose mental capacity.

Rather obviously, you need to choose at least one attorney. You can have as many attorneys as you like, although consider that the more you have, the more difficult it can be to get everyone to agree.

You must discuss the fact that you want someone to act as your attorney with them before you include them in your LPA.

Before you select your attorneys, consider:

  • How many attorneys do you want?
  • Will the attorneys you’ve chosen be able to work together?
  • Do you trust the attorneys that you’ve chosen to act in your best interests?
  • How well do your chosen attorneys know you and how well do they understand you?
  • How willing will your attorneys be to make what can sometimes be difficult decisions for you?

Don’t choose people to be your attorney just because you don’t want to offend them by leaving them out. If you want someone to feel included, make them a ‘person to notify’ instead.

If you are making a Lasting Power of Attorney for Financial Decisions at the same time, remember that you can choose different people for each document. You may feel more comfortable leaving your finances in the capable hands of certain family members, and the more personal decisions covered by the Lasting Power of Attorney for Health and Welfare in the hands of others.

Q: Who can be an attorney?

Although ‘Attorney’ sounds like it has legal connotations, attorneys don’t need to be legally qualified. The majority of people making a Lasting Power of Attorney for Health and Welfare simply choose family or close friends.

Some examples of people that you might choose to be your attorney are:

  • Your husband, wife, civil partner or partner that you live with
  • Another family member such as a sister or brother
  • A close friend

Q: What rights and obligations do attorneys have?

Lasting Powers of Attorney are governed by the Mental Capacity Act 2005 (MCA), regulations made under it and the MCA Code of Practice. Attorneys are required to understand these documents.

Your attorneys must follow the principles of the Mental Capacity Act regarding acting or making decisions for you:

  • They must assume that you can make your own decisions unless it is established that you cannot do so.
  • They must help you to make as many of your own decisions as you can.
  • They must take all practical steps to help you to make a decision.
  • They can only treat you as unable to make a decision if they have not succeeded in helping you make a decision through those steps.
  • They must not treat you as unable to make a decision simply because you make an unwise decision.
  • They must act and make decisions in your best interests when you are unable to make a decision.
  • Before they make a decision or act for you, they must consider whether they can make the decision or act in a way that is less restrictive of your rights and freedom but still achieves the purpose.
  • They must always act in your best interests – as defined in the MCA Code of Practice.

Q: Are there any decisions my attorneys cannot make for me?

As you might expect, there are some decisions that your Attorneys CANNOT make for you – even if they are family members, carers, professionals, attorneys or the Court of Protection. These include:

  • consenting to marriage or a civil partnership
  • consenting to have sexual relations
  • consenting to a decree of divorce on the basis of two years’ separation
  • consenting to the dissolution of a civil partnership
  • consenting to a child being placed for adoption or the making of an adoption order
  • discharging parental responsibility for a child in matters not relating to the child’s property
  • giving consent under the Human Fertilisation and Embryology Act 1990
  • voting in an election on behalf of the person that lacks capacity
  • unlawful killing or assisted suicide

The Mental Capacity Act also does not cover consent for treatment where a person who lacks capacity is being detained under Part 4 of the Mental Health Act 1983.

Although your Attorneys cannot make decisions for you in relation to these matters, they can take action to prevent you from being abused or exploited in relation to these matters.

Lasting Power of Attorney for Health and Welfare : Attorney rules

You can only appoint people as your attorneys for the Health and Care Decisions LPA – you cannot appoint a trust corporation.

People under 18 cannot be your attorney.

If an attorney can no longer act

An attorney will no longer be able to act for you if they:

  • Lose mental capacity themselves
  • Decide they don’t want to act any more
  • You were married / in a civil partnership with the Attorney but divorced / the partnership was dissolved – unless you specifically set out in Section 7 of the form that they can continue to be your Attorney, even if the relationship legally ends

If an Attorney no longer wishes to act for you, they can disclaim their appointment.

“I only appointed one attorney”

If you are only choosing one attorney and that attorney either dies or becomes unable to act for some reason, your Lasting Power of Attorney for Health and Welfare will no longer be valid. However, you can get round this by nominating some Replacement Attorneys  – these are only appointed if your original attorney cannot act for any reason.

“How do you want your attorneys to work together?”

You can decide whether your Attorneys should make decisions jointly, severally or a bit of both.

If you choose “jointly and severally”, each attorney can act completely independently of the others if they want to. It is their decision whether to act together or alone.

The BENEFIT of this option is that if one attorney dies or cannot act for you, the Lasting Power of Attorney will still be valid.

A further BENEFIT is that you don’t have to have a unanimous decision for every little action taken. This can be a real problem where there are several attorneys.

The DETRIMENT of allowing attorneys to act jointly and severally is that they may have different ideas about what is best for you. This is why it is so important to appoint people
who really know you and know what your wishes would be.

If you choose “jointly”, every attorney must agree on each decision made – regardless of how big or small the decision is. This can really delay the simplest of decisions if
your attorneys don’t agree. A further risk is that if one of your attorneys should die or become unable to act, the Lasting Power of Attorney is no longer valid as a joint decision is no longer
possible. However, you can get around this by appointing replacement attorneys.

If you choose “Jointly for some decisions, jointly and severally for other decisions”, your Attorneys will have to agree on certain decisions but will be able to make other decisions
without agreeing together.

You will then need to specify which decisions your attorneys should make jointly and agree unanimously. As before, another risk here is that if one attorney dies or becomes unable to act, your attorneys won’t be able to make any of the decisions that you’ve listed as them having to make jointly. However, this can be avoided if you appoint replacement attorneys. A final important point here is that you need to word the joint decisions carefully. This is why using an experienced lawyer is always advisable.

Acting in your best interests

Whichever way you decide to allow your attorneys to act for you, by law they must always act in your best interests. This includes making the effort to find out whether you still have the capacity to make a particular decision before they do it for you. They must also follow any instructions you have set out in your Lasting Power of Attorney for Health and Welfare and consider any preferences you have made on the form.

The Mental Capacity Code of Practice sets out your attorney’s duties in detail. To view it, click here.

Warning!

This part of your Lasting Power of Attorney is one of the most complex parts. If you don’t appoint your attorneys correctly, your Lasting Power of Attorney for Health and Welfare may not work the way you want it to, or it may be invalid. We strongly recommend the use of an experienced lawyer.

It is highly recommended that you appoint replacement attorneys in case one of your attorneys is unable to act for you.

If you do not appoint replacement attorneys, there are potential pitfalls.

If you have just one attorney and no replacements, and that attorney becomes unable to act for you, the Lasting Power of Attorney for Health and Welfare becomes unusable.

If you have multiple attorneys who have to make some or all decisions jointly, and one attorney becomes unable to act, without replacements the Lasting Power of Attorney for Health and Welfare again becomes unusable.

Remember that if your Lasting Power of Attorney cannot be used, someone will need to apply for a Deputyship Order to be able to manage your affairs. This might not
be the person you would have chosen and in any case, the application process can be lengthy and expensive.

Replacement attorneys

Q: Who can be a replacement attorney?

The requirements for a replacement attorney are exactly the same as for any other attorney.

Q: When will a replacement attorney be required to act?

If you choose just one replacement attorney, they will be required to act as soon as one of your original attorneys becomes unable to act.

If you choose more than one replacement attorney, they will all be required to act as soon as one of your original attorneys becomes unable to act unless
you have appointed your attorneys to act jointly and severally, and stated the order in which your original attorneys will be replaced.

Replacing an attorney who acts ‘jointly and severally’

If you decided to appoint your attorneys to act ‘jointly and severally’ (so they can decide whether they want to come together to make decisions or make them separately), replacement attorneys will step in if one original attorney becomes unable to act for you. The replacement attorneys and any original attorneys must then make all decisions jointly and severally.

Replacing an attorney who acts ‘jointly’ or ‘jointly for some decisions, jointly and severally for other decisions’

If you chose either of these options it is essential to have replacement attorneys. Otherwise, if one original attorney becomes unable to act, the Lasting Power of Attorney for Health and Welfare cannot be used (if it is ‘jointly’ for only some decisions, the Lasting Power of Attorney cannot be used to make those decisions).

Changing how and when replacement attorneys can act

You can appoint more than one replacement attorney and you can change the rules about how or when they act.

Creating an order for replacement attorneys

If you appointed your original attorneys to act ‘jointly and severally’ and you want your replacement attorneys to be called upon to act in a particular order, you will need to specify this on the form. You need to take great care here as mistakes will not be obvious but can be catastrophic.

Complications with replacement attorneys

Although it’s really important to appoint replacement attorneys on your Lasting Power of Attorney for Health and Welfare, they can also cause a lot of problems if they are not appointed correctly. Here are some examples:

One attorney + two or more replacements

If the original attorney cannot act, the two replacements will both be appointed and will have to act jointly – agreeing on every decision, no matter how small, unless you have specified otherwise.

Joint attorneys + one or more replacements

In this situation, if you lose mental capacity and one attorney stops acting, the original attorneys must all stop acting. The replacement attorneys will then take over all of the decisions.

So if you had three original attorneys and one replacement attorney, and one original attorney cannot act, the others will no longer be able to act either – and your replacement attorney will then make all of the decisions.

Joint attorneys for some decisions, jointly and severally for others + one or more replacements

In this scenario, if one original attorney stops acting, the rest of the original attorneys will not be able to take part in joint decisions. Those joint decisions will be made by the replacement attorneys going forward.

All of the above scenarios can be avoided with the help of an experienced lawyer.

Warning!

This part of your Lasting Power of Attorney is one of the most complex parts. If you don’t appoint replacement attorneys correctly, your LPA may not work the way you want it to, or it may be invalid. Although you don’t have to seek legal advice, we would strongly recommend that you do.

Consent to life-sustaining treatment

You have two options with a Lasting Power of Attorney for Health and Welfare:

  • “I give my attorneys authority to give or refuse consent to life-sustaining treatment on my behalf”; or
  • “Option B – I do not give my attorneys authority to give or refuse consent to life-sustaining treatment on my behalf”.

Life-sustaining treatment means care, surgery, medicine or other help from doctors that is needed in order to keep you alive. Examples include:

  • Serious operations, such as an organ transplant or heart bypass
  • Cancer treatment
  • Artificial hydration or nutrition

Sometimes life sustaining treatment can be something as simple as a course of antibiotics.

Decisions about life sustaining treatment might be required at any time during your life – for example, if you have a routine operation but this goes wrong. Remember that your attorneys
can only act if you have lose mental capacity yourself. In these circumstances, your attorneys will need to speak to the doctors for you.

You may WANT your attorneys to be able to make decisions about life sustaining treatment should you lose mental capacity.

Alternatively you may decide that you DON’T WANT your attorneys to be able to make decisions about life sustaining treatment for you. In this case, doctors will make
any necessary decisions for you.

This might include:

  • Assessing what is in your best interests
  • Taking into account as far as possible the views of your attorneys and those who are involved in your welfare
  • Taking into account what you have said or written about life sustaining treatment – this might include guidance you’ve given in your LPA (for example, in the ‘Preferences’ box of Section 7 – see below).

If by chance you make a mistake in this section – for example, forgetting to have your signature witnessed, the document defaults to the option that you DON’T WANT your attorneys to have this power – and the doctors will have the power to make any relevant decisions.

Preferences

If you want to, you can detail your preferences about life sustaining treatment on your Lasting Power of Attorney for Health and Welfare. However, remember that preferences are not binding on your attorneys – they don’t have to consider them.

Instructions

You can tell your attorneys how you would like them to act for you by giving them ‘Instructions’. Instructions are binding – your attorneys MUST follow them. However, you should be aware that complex or badly worded instructions can make an LPA unworkable.

You don’t have to give instructions. You might instead prefer to speak to your attorneys about how you would like them to act for you. They can then make a decision at the right time, knowing your wishes. If you would like to write instructions but you’re unsure about what you can put in this section of your LPA, it is a good idea to get legal advice.

Advance Decisions

Your LPA is not the only way you can make your preferences known regarding medical treatment, should you not be able to communicate them in the future.

You can also make an ‘Advance Decision’ which allows you to specify particular treatments you don’t want. This can be used at any point when you are unable to make your wishes known – for example, because you are unconscious. An Advance Decision is also sometimes known as an Advance Directive or a Living Will.

If you do decide to make an Advance Decision, it’s important to refer to it on your Lasting Power of Attorney for Health and Welfare. You also need to send a copy of the Advance Decision with your Lasting Power of Attorney when it goes to the Office of Public Guardian to be registered.

Note that if you make an Advance Decision but ALSO give the power to your attorneys to make decisions for you about life sustaining treatment, the Lasting Power of Attorney can
override the Advance Decision. It’s important therefore to make sure that both documents are consistent.

You can find out more about Advance Decisions here.

There is also useful information in Chapter 9 of the Mental Capacity Code of Practice on life sustaining treatment, advance decisions and how your medical team will respond to your wishes.

Warning!

You need to be very careful about the Instructions you give in your Lasting Power of Attorney for Health and Welfare and ensure they don’t contradict with anything you’ve included elsewhere in your LPA. If you do write something that contradicts something you’ve written elsewhere, it could make your LPA unusable. We strongly suggest you seek legal advice.

Certificate provider

To make a Lasting Power of Attorney for Health and Welfare, you will need a certificate provider. This is someone impartial that signs to say you understand what you are doing in making a Lasting Power of Attorney and nobody has forced you to make it.

By signing your Lasting Power of Attorney, the certificate provider is confirming that:

  • you understand the significance of the Lasting Power of Attorney
  • you have not been put under pressure to make it
  • there has been no fraud involved in making the Lasting Power of Attorney, and
  • there is no other reason for concern.

Q: Who can be my certificate provider?

Your certificate provider must be at least 18 years old and must either be:

  • someone you’ve known well for at least two years – such as a friend or colleague; or
  • a professional person such as a lawyer or doctor. You do not need to have known the professional person for two years as they will make a professional judgement as to whether you understand what you are doing and have not been forced to make the LPA.

A suitable professional person could be:

  • a registered healthcare professional, such as your doctor
  • a solicitor, Legal Executive, barrister or advocate
  • a registered social worker
  • an independent mental capacity advocate (IMCA)

This is not a definite list – there may be other people who are also suitable. If you make your Lasting Power of Attorney for Health and Welfare with a professional firm such as April King Legal, your lawyer will be your certificate provider.

People who cannot be your certificate provider

Some people cannot be your certificate provider for your Lasting Power of Attorney for Health and Welfare. These include someone you have listed as either an attorney or a replacement attorney, an unmarried partner, boyfriend or girlfriend of yours, or of one of your attorneys, any member of your family and any member of your chosen Attorneys’ family. This is just a brief overview – you should be aware that there are a number of other people who cannot act as a certificate provider.

LPA fees

You can find out how much it costs to make one or both types of LPA on our LPA fees and costs page.

Get in touch

Our friendly team are waiting to help you complete one or both types of Lasting Power of Attorney. They can also advise you on potentially complex sections such as Section 3, Section 4 and Section 7 and will act as your Certificate Provider, in addition to dealing with the full registration process for you. Although some lawyers charge very high fees for this, not all are the same.