Care homes and lasting powers of attorney for health and welfare – potential pitfalls

It has been possible to make Lasting Powers of Attorney (LPAs) since 2007.

There are two types – LPAs for Property & Financial Affairs and Health & Welfare (H&W).

The concept of appointing an attorney to manage someone’s finances has been well established for many years.

However, until the advent of LPAs it was not possible to appoint an attorney to make decisions about your health and welfare. 

Many clients will appreciate the wisdom of appointing someone they trust to manage their financial matters but may take more convincing about the benefits of a health and welfare attorney.

In my experience a H&W LPA is crucial. Unlike a financial LPA, a H&W LPA can only come into operation if you lack capacity, as it is assumed that a person with the requisite capacity would always make such fundamental decisions themselves. Your attorney or attorneys must at all times act in your best interests and if possible try to engage with you and close family and friends before making any decision.

The importance of the H&W LPA has been seen recently in lockdown. A daughter tried to take her incapacitated mother out of her care home to live with her because, in her opinion, being there was exacerbating her mother’s condition by denying her access to any outside visitors. The daughter managed to get her mother into her car but was then arrested by police because she lacked legal authority – legal authority that would have been present if her mother had made a H&W LPA. It now appears too late for her mother to make an LPA and a court battle with social services looms.

I had a client who had a similar experience. He was prevented from removing his incapacitated wife from her care home on Christmas Eve because he had not been appointed as her attorney for health and welfare. His LPA for Property & Financial Affairs did not suffice. 

Appointing family members or friends as your health and welfare attorneys is the most effective way of giving those you trust control over your health and welfare. In the above examples the lack of a H&W LPA appears to have been the major obstacle to removing the incapacitated resident from the care home.

H&W LPAs have many other uses.

  1. You can specify whether you want your attorneys to be empowered to consent to continuing with or withdrawing life-sustaining treatment on your behalf (with appropriate guidance on your wishes included in the LPA). Such authority, if given to the attorney, does not authorise euthanasia or assisted suicide nor does it mean the attorney can demand medical treatment be given.
  2. Your attorneys can make decisions about your medical treatment (subject to professional medical advice).
  3. Your attorneys can decide whether to allow particular persons to visit you.

Many clients keep their affairs are in order by updating their will and making an LPA for Property and Financial Affairs but it is also vital to ensure a Health & Welfare LPA is prepared.

Hopefully the LPAs will never need to be used, but if you do lose capacity and have not made LPAs your family could be faced with an expensive application to the Court of Protection to gain control of your health and welfare and obtaining such orders are relatively difficult to obtain. 

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