What is a Health and Welfare Lasting Powers of Attorney?

A Lasting Power of Attorney for Health and Welfare is the legal document required to give authority to another person(s) to make decisions on your behalf about your health and welfare.

It can only be used by your Attorneys to make decisions on your behalf if you have lost mental capacity to make them for yourself.

Life Sustaining Treatment

The donor must decide in section 5 of the Lasting Power of Attorney, whether or not the Attorney(s) can give or refuse consent to life-sustaining treatment on their behalf, or whether they would prefer that the doctors simply consult the family more generally without giving extra weight to the view of the Attorney(s),

Life sustaining treatment could range from a course of antibiotics to artificial nutrition and hydration.

Who should I appoint as an Attorney?

It is important to think carefully about who you would like your Attorney(s) to be as they will have authority to manage and make decisions in relation to your health and welfare. It is important that they are trustworthy, honest and capable of acting with integrity – though they don’t actually need any specialist skills to carry out the role. It can be anyone who is aged 18 or over and who has mental capacity.

How many Attorneys should I have?

You can appoint up to four Attorneys, and up to four Replacement Attorneys should any of the original Attorneys die or be unable or unwilling to act.

Four Attorneys is quite a lot of Attorneys to have, so you may wish to consider having two Primary Attorneys and two Replacement Attorneys, to keep the logistics simple.

If you appoint more than one Attorney, then you should consider whether they can work well together. If there is a high degree of possibility that they will fall out and not be able to agree on matters, then you may wish to rethink the choice of Attorney.

Where there is more than one Attorney, you will need to think about whether you want them to act jointly (together for all decisions) or jointly and severally (together or alone) or jointly for some decisions and severally for others.

A joint appointment will mean that the Attorneys always need to act together, which could be tricky if one of them was to be unavailable due to a holiday, work or their own health. Additionally, if one of them was to die then the other would not be able to continue acting. Your Replacement Attorneys would need to step if, or if there aren’t any, then you will need to re-make the Lasting Powers of Attorney. Having said that, there are occasions where it would be sensible to appoint the Attorneys on a joint basis.

A joint and several appointment is a little more flexible in that the Attorneys can act alone or together in making their decisions. Whilst this is more flexible, it is not always appropriate so it will need to be considered in light of your personal circumstances. The flexibility will make it easier for the Attorney to continue managing your affairs should one of them be unavailable or have died.

Appointing the Attorneys jointly for some decisions and severally for others is a hybrid of the other two options, which offers security and flexibility. The Lasting Powers of Attorney will need careful drafting so that it is clear as to which decisions are to be made together and which can be made by an individual Attorney.

How do I make a Lasting Power of Attorney?

It is important that you seek legal advice before preparing your Lasting Powers of Attorney to ensure that they are tailored to your individual needs and to ensure that they give your Attorneys all the powers they are going to need.

Once the forms have been drafted, you will need to sign them, along with your Certificate Provide and the Attorneys. All signatures (apart from the Certificate Provider’s) need to be witnessed by an independent witness aged of 18 years and who has mental capacity.

It is also important that the forms are signed in the correct order, or they will not be valid.

In order to actually use the Lasting Power of Attorney, it must be registered with the Office of the Public Guardian (see below) and then registered by them with your GP or the care home etc.

What is a Certificate Provider?

The Certificate Provider’s role is to confirm that you have mental capacity and that you understand the Lasting Power of Attorney documents and the powers that you are granting in them, and to confirm that there is no fraud or undue influence from third parties pressurising you into preparing the Lasting Power of Attorney.

The Certificate Provider will usually be the solicitor preparing the documentation for you, but if there any concerns regarding your mental capacity then your GP may carry out this role.

What are my duties as an Attorney?

Section 8 of the Lasting Power of Attorney explains the legal rights and responsibilities of an Attorney acting under a Lasting Power of Attorney. It explains that the duties of an Attorney are governed by the Mental Capacity Act 2005 and the Code of Practice.

The most important duty is to always act in the donor’s (the person who granted the Lasting Power of Attorney’s) best interests.

Some of the decisions that Attorneys may need to make may include decisions about medical treatment, life sustaining treatment, care and where you should live.

Can I be paid for being an Attorney?

You can recover all your reasonable out-of-pocket expenses from the donor such as travel expenses, postage and telephone calls.

However, you can only receive fees for acting as an Attorney if the donor has expressly authorised payment in the instructions section of the Lasting Power of Attorney. If you do not want to take on the role of attorney without payment, you should discuss this with the donor and check the Lasting Power of Attorney form carefully before signing.

It is unusual, though not unheard of, for a lay (friend or family member) to be paid for acting as an Attorney, and it tends to be Professional Attorneys who will charge.

What are the Rights and Responsibilities under a Lasting Power of Attorney?

Section 8 of the Lasting Power of Attorney sets out the legal rights and responsibilities and explains that Lasting Powers of Attorney are governed by the Mental Capacity Act 2005 and the Code of Practice.  Section 8 sets out five key principles:

• Your Attorneys must treat you as being able to make your own decision, unless it is established that you cannot do so.

This means that you must assume that the donor has the mental capacity to make financial decisions and consider each decision as the donor makes it, giving support to the donor to make the decision, if able to do so.

• Your Attorneys must help you to make as many of your own decisions as you can. They must take all practical steps to help you make your own decisions. They can only treat you as unable to make a decision if they have not succeeded in helping you through those steps.

Some people need help to make or communicate a decision. For example, you may need to help the donor with non-verbal communication (for example, writing down a decision or communicating by sign language) or provide relevant information in a more accessible format. The donor may have fluctuating capacity so there might, for example, be a particular time of day when it is best to try to help the donor to reach a decision.

• Your Attorneys must not treat you as being unable to make a decision simply because it is an unwise decision.

It is important to recognise that the donor is an individual who may have different beliefs, values and attitudes to you. This means that just because the donor makes a decision that you may not have made, it doesn’t necessarily mean that they lack mental capacity to make it.  

• Your Attorneys must act and make decisions in your best interests, when you are unable to do so.

This is the most important principle and should underpin every act you take and decision you make.

• Before your Attorneys 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 freedoms but still achieves the purpose

Is there anything else that the Attorneys can do to help you to make the decision?

Mental Capacity Act 2005 is supplemented by the Mental Capacity Act Code of Practice. You are legally obliged to consider the Code of Practice, which contains helpful guidance for attorneys and explains how the principles should be applied in practical scenarios.

You may find it useful to read Chapter 7 of the Code of Practice before taking up your appointment (see www.gov.uk/government/publications/mental-capacity-act-code-of-practice).

Donor’s instructions

The donor may provide additional instructions that you must follow when making decisions in the ‘instructions’ box in section 7 of the Lasting Power of Attorney. It is important to make sure that you are familiar with these instructions before you start acting under the Lasting Power of Attorney, and if you have any questions about the instructions then you may wish to consult with the donor when you sign the Lasting Power of Attorney (as they will still have mental capacity at this point).

Some common instructions might include consent to blood products, end of life care or which care homes they do/don’t want to live in.

Donor’s preferences

The donor may provide additional preferences that you may follow when making decisions in the ‘preferences’ box in section 7 of the Lasting Power of Attorney. It is important to make sure that you are familiar with these preferences before you start acting under the Lasting Power of Attorney, and if you have any questions about the instructions then you may wish to consult with the donor when you sign the Lasting Power of Attorney (as they will still have mental capacity at this point).

Some common preferences might include their preferences regarding accommodation, care and medical treatment.

Will I be supervised?

The Office of the Public Guardian are responsible for supervising Attorneys. If concerns are raised, the Office of the Public Guardian may investigate and if necessary, remove an Attorney through the Court of Protection.

Anyone with concerns about an Attorney (even a Co-Attorney) should consider raising their concerns with the Office of the Public Guardian.

What if things go wrong?

If you act in accordance with your legal duties and, in particular, in the best interests of the donor, then it is unlikely that you will be criticised for any decisions that you made on behalf of the donor.

If you act under a registered Lasting Power of Attorney that turns out to be invalid, you will not incur any liability (to the donor or anyone else) unless:

• You knew that the LPA was invalid.
• You were aware of circumstances that would have terminated your authority to act under the Lasting Power of Attorney, if it was valid.

If you have acted improperly:

• You may need to pay the donor money to compensate for the donor’s loss.
• In the case of ill-treatment or wilful neglect of the donor, an attorney can be found guilty of a criminal offence punishable by a fine or imprisonment of up to five years.
• You could be charged with fraud.

Registration

You or the donor can register the Lasting Power of Attorney with the Office of the Public Guardian at any time. It is advisable to register the Lasting Power of Attorney as soon as it has been made, in case there are any problems with it, as these can be addressed whilst the donor still has mental capacity.

This does not mean that the Lasting Power of Attorney needs to be used right away. It can simply be filed until the time arises where it is needed i.e. the donor has lost mental capacity. Registering at this point also ensure that there are no lengthy delays at a later date as a result of waiting for the registration – which at present is taking 20 weeks.

To register the Lasting Power of Attorney, the donor or attorney(s) must sign the registration part of the Lasting Power of Attorney form (at the end) and give notice using an LP3 form to anyone that the donor has specified as “people to be told”.

If you are applying for registration and are appointed as joint attorneys, all the attorneys must add their details and sign the registration part of the form. If you are appointed as joint and several attorneys, only one attorney need add their details and sign the registration part of the form.

The OPG charge a registration fee of £82, which is payable from the donor’s funds. In cases of financial hardship, a lower fee may be charged, or the fee waived.

What happens if I need more than one copy of the Lasting Power of Attorney?

You should avoid sending the original registered Lasting Power of Attorney by post to a third party. You should therefore offer to supply an office or certified copy instead.

You can get office copies from the Office of the Public Guardian at a cost of £35 per document.

Alternatively, a solicitor or accountant can certify a copy of the Lasting Power of Attorney.

How does my appointment as Attorney end?

When the donor dies, the Lasting Power of Attorney automatically comes to an end. You will need to send the original Lasting Power of Attorney (and any copies) with the death certificate to the Office of the Public Guardian for cancellation as soon as possible.

Giving up your appointment

You can decide to stop acting as an Attorney at any time. If the Lasting Power of Attorney is registered, you must complete form LPA005 and send the original to the donor. You must also send a copy to the Office of the Public Guardian and to any other Attorneys named in the Lasting Power of Attorney. If you are the only Attorney, you should send a copy to any Replacement Attorneys named in the Lasting Power of Attorney.

 

For further information regarding the above or if you would like to discuss a Wills & Probate related query with one of the team, please call us on 0800 011 6666 or e-mail the team at legal@timms-law.com.