Health and Welfare LPAs
(WITH IMPLICATIONS for PROPERTY and FINANCIAL AFFAIRS LASTING POWERS of ATTORNEY [LPAs])
What are LPAs in the Broadest Sense?
What is a Lasting Power of Attorney in the UK?
Before October 2007 there was another system involving ‘enduring powers of attorney’ which historically limited itself to issues concerning property and money. Yet a new Lasting Power of Attorney (LPA) was created with the Mental Capacity Act (MCA) of 2005. Critically it covers not simply property and money but also medical concerns. Therefore, in summary, LPAs reflect changing times apropos 21st century healthcare and the sad consequences that can stem from it – especially where one’s abilities can be compromised for many years as one clings on to life.
LPAs are designed to make arrangements for any circumstances when adults aged over 18 (and they’re referred to as ‘donors’, though critically this is not in the medical and human tissue sense) may – and ultimately do – lose the ability to look after their own personal, business and/or financial affairs.
An LPA lets those donors make the necessary arrangements for one or more of their relatives (they consequently become the donor’s ‘attorney’ or ‘attorneys’) to make and execute sensible decisions on the behalves of donors. All LPAs are regulated by the Office of the Public Guardian (OPG) and that body, in turn, falls within the auspices of the Home Office. Even more reassuringly, if something went awry then the Financial Services Ombudsman has powers to investigate and intervene. So there is a comprehensive raft of safeguards to protect the best interests of donors.
Clearly such LPAs might take effect where a loss of facilities is anticipated (for example where the donor has been diagnosed with premature senile dementia). Or they can take effect where that compromised capacity would be entirely unanticipated (for example where the donor is left on life-support and/or in a coma after an RTA, an ischaemic attack or a life-saving emergency intervention).
Importantly slightly different rules apply in both Scotland and Northern Ireland. Yet for an LPA to be drawn up here in the UK a donor need not be resident or even be British. Importantly a donor can adjust or terminate an LPA, if they are up to the task, using a ‘partial deed of revocation’ or a ‘deed of revocation’ respectively.
A Health and Welfare Lasting Power of Attorney (LPA)
An LPA gives an attorney powers only if you’re definitely already unable to make decisions (this is where it is slightly different from an LPA apropos just money and property – one that kicks in as soon as it’s been drawn up). The attorney’s decisions and actions for a health and welfare LPA may well include:
- Deciding on your daily routine in respect of getting you washed, dressed and fed
- Deciding, with healthcare professionals, on your medical care
- Deciding on if you should be moved into care or a hospice
- Deciding, with healthcare professionals, on whether you should be given life-sustaining treatment or if it should be withdrawn.
Could LPAs be Misused When Donors are Still Perfectly Competent?
The MCA specifies numerous safeguards to prevent accidental misuse – or indeed wilful abuse – by any attorney. Critically there are 5 fundamental principles which boil down to questions that should be asked of the donor’s intellectual capacity before any LPA is executed:
- It’s assumed that the donor’s capable until it’s clear that they aren’t
- Donors mustn’t be judged incapable until every reasonable effort to include them in decision-making processes has failed
- Poor decisions made historically by donors don’t automatically prove they’re subsequently unable to make sound decisions
- All attorney decisions must self-evidently be made in the best interests of donors
- All decisions or acts under LPAs must respect, where practicable, donor rights and each donor’s entitlement to freedom of action.
In Extremis, What is the Acid Test for Whether or Not I’ve Lost My Faculties?
Self-evidently decisions apropos donor capacity may easily be considered to be objective when, in fact, they’re actually subjective. Yet in the event the question usually asked of donors is decision-specific. That is something like: ‘Would this donor be safe if we left them, on their own, to light and use a gas hob?’ Usefully the MCA says this approach is ‘a single clear test for assessing whether a person lacks capacity to take a particular decision at a particular time’.
What Could Possibly Go Wrong?
Unfortunately quite a few things can, and do, routinely go wrong. And they may be nobody’s fault. Matters would be complicated if, for example, a single attorney died before the donor did. That’s why you ought to talk to Goodwills. Our solicitors don’t have second sight but we do have the next-best thing – vast hands-on experience of LPAs that enables them to anticipate an array of statistically-likely scenarios and so that they can dispense professional advice accordingly.
Where Can You Find Out More About LPAs?
You can find out more on LPAs at Goodwills though the government website will tell you a lot at www.gov.uk/power-of-attorney.