Lasting Powers of Attorney – Health and Welfare

Wills, Trusts & Probate insights

What is a HW LPA?

A Lasting Power of Attorney for Health and Welfare (HW LPA) is a legal document by which you (the Donor) can appoint one or more persons (the Attorney) to make personal welfare decisions on your behalf including medical matters and healthcare.

The HW LPA is called ‘lasting’ because it will continue should you lose the mental capacity to make decisions at some future time.

Personal welfare decisions are those that relate to your welfare, such as medical decisions (giving or refusing consent to medical treatment or operations), decisions as to where and with whom you live, accessing personal information such as medical records and could extend to deciding what you wear, eat and how your day is spent.

 

Are there limits on its use?

The HW LPA is limited in several ways including:

  • the Attorney cannot make any decisions where you have the capacity to make the decision yourself;
    the Attorney cannot give or refuse consent to life-sustaining treatment, unless the HW LPA expressly provides for this;
  • the Attorney cannot make decisions on matters such as consenting to a marriage/civil partnership, sexual relations, divorce/dissolution of a partnership or separation, consenting to adoption, consent under the Human Fertilisation and Embryology Act 1990 or consent under the Mental Health Act 1983.

 

What are the Attorney’s duties under the HW LPA?

An Attorney must at all times act in your best interests; comply with the principles of the Mental Capacity Act 2005; act within the scope of their authority as set out in the HW LPA; assist you in making as many decisions as you are able to make, discuss with you the duties they are taking on under the HW LPA and familiarise themselves with your wishes and feelings; take into account any guidance specified within the HW LPA; and have regard to the Code of Practice produced by the Office of the Public Guardian (OPG) (see http://www.justice.gov.uk/protecting-the-vulnerable/mental-capacity-act)

 

Who do I appoint as my Attorney(s)?

Someone you can trust absolutely who has the judgement to make the right decisions about your personal welfare. A close family member may be ideal.

 

How many Attorneys?

You can appoint as many Attorneys as you like. One, two or even three is not uncommon. You can name a replacement in case an Attorney is unable to or no longer wishes to act for you.

An Attorney can change their mind and decide not to act for you but must formally notify you and the OPG. You can specify your wish that Attorneys act together in some matters and independently in respect of others.

 

Can my Attorneys be the same as my Attorneys under my Property and Affairs power?

Yes, but remember different skills may be needed so different Attorneys may be suitable. Different Attorneys would be expected to consult with one another when say the choice of a nursing home is an issue since both welfare and financial implications arise.

 

Can my Attorneys’ powers be limited and can I give guidance?

You may further restrict the decisions your Attorney can make on your behalf by expressing these as conditions or restrictions in the HW LPA. The HW LPA allows you to give guidance to the Attorney(s). Any guidance given is not legally binding but the Attorney(s) should take it into account when making any decisions for you.

 

Are there other requirements?

You will also need to obtain a certificate by someone independent (a Certificate Provider) to certify that you understand the nature and scope of the HW LPA; that you are not being put under pressure to sign it; and that there is no other reason to prevent it being granted. The Certificate Provider can either be a professional such as a solicitor or a doctor or alternatively someone who has known you for at least two years.

 

When can my Attorney act?

A Personal Welfare Attorney can only act for you once the HW LPA has been registered with the OPG and you lack the mental capacity to make your own decisions.

 

Can my LPA be cancelled?

A HW LPA can be cancelled even after registration, provided you have the mental capacity to do so.

 

Does this affect my Advance Decision (also known as a Living Will)?

A HW LPA made after an Advance Decision will make the Advance Decision invalid if the HW LPA gives the Attorney authority to make decisions about the same treatment. An Advance Decision, made after an HW LPA, which is valid and applicable in the circumstances, takes priority over the HW LPA.

 

These notes are not exhaustive and are meant as a basis for discussion with your legal adviser. If clients wish to discuss any of the above, please contact our Private Client Team 020 8940 4051 who will be pleased to help you

IMPORTANT: this information is intended to be a general statement of the law. No action should be taken in reliance on it without seeking specific legal advice.

Our Private Client team

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Private Client department
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Dixon Ward | Wills, Powers of Attorney, Probate & Trusts | The Team | Abigail Pfister

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Dixon Ward | Wills, Powers of Attorney, Probate & Trusts | The Team | Paul Denza

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