Why Is A Health & Welfare Lasting Power Of Attorney So Important
Posted on 2nd December 2021 at 16:56
What is a lasting power of attorney (LPA)?
An LPA is a legal document which allows you to appoint someone you know and trust to make decisions on your behalf should you become unable to do so in the future. This person is called an attorney. Attorneys must always act in your best interests.
There are 2 types of LPA: -
• Health and Welfare
• Property and Financial Affairs
We will be specifically looking at Health and Welfare LPAs more closely here.
What can attorneys do?
Having a Health & Welfare LPA in place will give your attorneys the authority to make decisions on your behalf about the following matters:
• Day to day decisions regarding exercise, dietary requirements, and care
• Medical or dental care
• Life-sustaining treatment
• Where you live, i.e., relocation into a care home or sheltered accommodation
The LPA will allow you to set out any preferences you would like your attorneys to be aware of. Preferences are non-binding wishes that you would like the attorneys to keep in mind when making decisions on your behalf. Examples include what you would like to take into a care home with you, how often you would like to go to the hairdressers, etc.
You can also set out instructions in the LPA which are legally binding and what your attorneys MUST follow, for example, not moving you into a care home unless it is specifically advised by doctors, etc.
When can an LPA be used?
A Health & Welfare LPA will only allow your attorneys to make decisions for you once you lose mental capacity and therefore cannot make decisions for yourself.
What is the cost and how long does it take to put in place?
At 4 Probate and Wills, we have fixed fees in relation to setting up LPAs, depending on whether you choose to do one or both types and whether you are making them as a single person or as part of a couple.
All LPAs must be registered with the Office of the Public Guardian (OPG) before they can be used. There is also a registration fee payable to the OPG when the LPA is sent to them. The current cost is £82 per LPA. If you are on a low income or receive benefits, you may be eligible for fee remission. An additional form will need to be completed if you are applying for reduced fees.
Registering your LPA with the OPG can take up to 16 weeks or possibly longer, depending on the volume of applications they receive, so it is important you register your LPA as soon as possible.
Can't my husband or wife just speak on my behalf if they need to?
It is a common misconception that a Health & Welfare LPA is only needed for those that are of an older age. The reality is that capacity could be lost at any time due to a serious accident, stroke or even a degenerative condition such as Alzheimer’s or Dementia.
If you should lose capacity and there is no Health & Welfare LPA in place, your family and friends will not have automatic authority to make decisions on your behalf with regards to your health and welfare. Instead, others could make decisions for you and the decisions made may not be what you would have wanted, i.e., social services decide where you live and what care you receive, or you may be resuscitated against your wishes. This can cause disagreements between family members and professionals about what is best for you.
Having an LPA in place prevents those disagreements whilst ensuring loved ones who are best placed to look after you if you lose capacity are legally able to do so.
Can I make an LPA once I have lost capacity?
No. If capacity is lost and there is no LPA in place already, a friend or family member must apply to the Court of Protection to be a Deputy for you and make decisions on your behalf.
However, this is a long and expensive process. The process can take up to 18 months, so it is cheaper and more effective to have an LPA in place.
In summary, it is easier to think about LPAs as a kind of insurance policy which you take out not knowing whether you will need to use it or not. However, if you don’t do one and then find that one is needed, it is too late and becomes a much bigger issue to resolve.
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