Health and welfare lasting power of attorney
Making a health and welfare lasting power of attorney
A Lasting Power of Attorney (LPA) is considered an essential document for someone who is unable to make decisions about their own affairs and their care, but it must be created while they can still make these decisions. For example, a person with dementia or Alzheimer’s who is likely to experience cognitive decline and eventually be unable to make the best choices for themselves, or just someone in palliative care and nearing end of life, may appoint their adult child or someone else that they trust to be their Lasting Power of Attorney. This means when the time comes, their loved one is legally allowed to make important decisions on their behalf, with their best interests in mind.
There are several types of Power of Attorney depending on a person’s needs, but here, we are demystifying the Lasting Power of Attorney used for health and care decisions. If you are curious to know what this is, how it works and in what circumstances you may require one, we are sharing everything you need to know. We will also detail the role of the Lasting Power of Attorney, how you can make one, whether or not you need a solicitor for this, the difference between the various types of Power of Attorney, who you can choose to be your Lasting Power of Attorney, what their responsibilities and rights are, and where you can access legal support.
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What is the role of a Health and Welfare Lasting Power of Attorney (LPA), and how does it work?
A Health and Welfare Lasting Power of Attorney (LPA) is a legal document created to give someone the authority to make decisions on behalf of another person, usually an older loved one. This is only used if they no longer have the mental capacity to make important decisions for themselves.
For clarity, there are 3 different types of Power of Attorney documents – Lasting Power of Attorney (LPA), Enduring Power of Attorney (EPA), and Ordinary Power of Attorney (OPA) – which all have different specifications for when they can be used. When we talk about a Health and Welfare Power of Attorney, this refers to the Lasting Power of Attorney, which grants the ability to make decisions for a person due to a health condition, such as an illness or in the event of an accident. Decisions like where they get treatment, what type of medical care they will receive, and what their daily routine should look like are all the responsibility of a Lasting Power of Attorney in the event that a person cannot make these decisions themselves.
Without a document like this, any health decisions would be made by social workers instead, even if the person has children or a spouse – remember, without a Lasting Power of Attorney document, your spouse does not automatically have the right to make decisions like this for you.
You can read more about Power of Attorney documents in our guide: How To Get Power Of Attorney For Elderly Parents
Why would someone need a Health and Welfare Lasting Power of Attorney?
There are a number of reasons it is beneficial to obtain a Health and Welfare Lasting Power of Attorney, such as:
- If you anticipate needing more care in the near future due to age or a progressive illness
- If you have a family history of a health condition that could limit your capacity to make decisions for yourself
- If you have particular wishes for your medical care that you would like a loved one to champion for you when you cannot
- If you have been diagnosed with a serious condition that might cause cognitive decline in future, such as dementia, Alzheimer’s or other neurological conditions
- If you are worried about your health decisions being left to your local social work department or an appointed deputy (which can cost money)
- If you have a surgical procedure coming up that could lead to a temporary or permanent inability to make decisions for yourself
- If you want to make sure a particular person has the right to make your decisions without being required to go to court (which can cost money)
- If you do not want a particular person in your family or your life to be involved in your health decisions, such as an ex partner
- If you want health and welfare decisions to be made for you without delay
A Health and Welfare Lasting Power of Attorney can be incredibly helpful for family members when a person is in the late stages of a health condition, and cannot decide the specifics of their own care. Ideally, you should arrange a Lasting Power of Attorney while you are still in good health and can make decisions for yourself. It may not come in handy for a long time, but having it organised in advance means less stress down the line for your loved ones.
If you are caring for someone with a terminal illness, it is also important to organise an End-of-Life Care Plan to ensure their wishes are documented for this difficult eventuality. You can read more in our guide: What Is An End Of Life Care Plan?
How does this work for a person with dementia or a similar condition?
In the case of dementia, cognitive decline is a major issue that can often make it impossible for a person to make realistic decisions about what they need, when they need it and what is best for them in the long run. When this time comes, it may already be too late to obtain a Lasting Power of Attorney due to the Mental Capacity Act.
This legislation assumes every adult has the capacity to make decisions themselves unless it is proven otherwise, so depending on how advanced a person’s dementia is, they may no longer be allowed to appoint their chosen Health and Welfare Lasting Power of Attorney. This is why it is so important to organise this early – bear in mind some types of dementia progress rapidly, so it is vital to put this in place as soon as possible.
If you cannot get a Health and Welfare Lasting Power of Attorney early enough and a loved one’s cognitive abilities have become so limited that they cannot effectively decide things for themselves, the family will need to make a court appeal to determine whether or not they can still be appointed as a Lasting Power of Attorney, or if a deputyship may need to be put in place. This can be costly and time-consuming, so if possible, arrange to put a Lasting Power of Attorney in place early.
If you are caring for someone with dementia, you may find our guide helpful: Building A Care Plan For A Dementia Patient At Home.
Who can become a Health and Welfare Lasting Power of Attorney?
Anyone can be chosen as a Lasting Power of Attorney, provided they are over 18 years old, and capable of rational decision-making themselves.
More than one person can be chosen as a Lasting Power of Attorney, and this can be helpful in situations where one Power of Attorney will not always be available to make decisions due to their career, their own family, or their location. If there are multiple children in a family, parents may choose to make all of their children joint PoAs. Jointly appointed Lasting Power of Attorneys must agree on all decisions. However, they can either act:
- “Jointly” – meaning they make all decisions together
- “Jointly and severally” – meaning they must make some decisions together but others may be made individually
What are their rights and responsibilities (and what can’t they do)?
According to Citizen’s Advice, depending on the type of Power of Attorney in place, a person may be responsible for managing a loved one’s health and welfare-related affairs. For example:
- Making decisions about their personal care or health care
- Viewing the person’s medical records
- Making decisions about where they live
- Managing who visits them
- Managing how they spend their time each week
- Managing their diet and nutrition needs
On the other hand, there are some things the Health and Welfare Lasting Power of Attorney cannot get involved in. For example:
- If a doctor does not believe a certain type of medical intervention is appropriate (such as CPR), they cannot demand this
- If someone (such as a care worker) believes they are not acting in the best interests of their charge, they can challenge any decisions being made
- If their loved one has already created a will or been involved in the creation of an advance decision to refuse treatment, they cannot overrule the decisions that have already been made (unless there is good reason to do so)
How do I make a Health and Welfare Lasting Power of Attorney?
If you are looking to appoint a Lasting Power of Attorney document for yourself or on behalf of a relative, you can do this in the UK using the following steps:
- First, research to make sure this is the best type of Power of Attorney for your needs. If you want to appoint a PoA for your finances, this requires a different document.
- If you haven’t already, choose who your Lasting Power of Attorney will be, and let them know you are appointing them. If you are creating this on behalf of a loved one, ensure you have discussed this fully with them as they will be required to sign off on it.
- Complete the required forms online via the Office of the Public Guardian.
- Submit your forms by sending them to the Office of the Public Guardian with the fee (it costs £82 to register a Lasting Power of Attorney unless you are entitled to a reduction or exemption).
- After a typical wait time of several weeks, your registration should become official when the office has processed your application. This usually involves the office contacting any other appropriate relatives to offer them the chance to express any concerns they have about this appointment.
- Once registered, your Lasting Power of Attorney will become legally effective and can be used from this point on if needed. Remember to let the person’s GP know you are now the Health and Welfare Lasting Power of Attorney.
If you would like to contact the Office of the Public Guardian to request an application pack by post, you can write to them at:
Office of the Public Guardian
PO Box 16185
Birmingham
B2 2WH
Phone: 0300 456 0300
Textphone: 0115 934 2778
Email: [email protected]
Do I need a solicitor to do this?
If you would feel more comfortable with their legal advice, you can use a solicitor to create a Lasting Power of Attorney, but you do not need to use one. Many people create this on their own using the steps mentioned above. Keep in mind solicitor fees could be around £500, so always check the cost at the initial consultation and decide if this is the best option for you.
What is the difference between a Health and Welfare Lasting PoA, Finance PoA, and General PoA?
As a reminder, in the UK there are three main types of Power of Attorney to know about, and you should make sure you choose the appropriate one for your circumstances:
- Lasting Power of Attorney (LPA) – This is the PoA required for all health and welfare-related decisions, such as where a loved one should receive their care or what medical decisions should be made.
- Enduring Power of Attorney (EPA) – This type of PoA means the appointed person can manage financial affairs for their loved one if they are no longer able to make financial decisions for themselves. This could be things like paying bills and accessing bank accounts.
- General Power of Attorney (GPA) – This is a temporary arrangement which allows a person to manage their loved one’s affairs on a short-term basis, usually less than 12 months. An example of this may be if someone moves abroad for a while and would like a family member to manage their financial affairs while they are away.
If you believe you need to arrange a PoA for health and welfare decisions, you will typically need a Lasting Power of Attorney (LPA), but you can arrange a separate Enduring Power of Attorney (EPA) too if you wish for a loved one to manage your financial affairs. If you are unsure who to appoint or which type of PoA you need, you may wish to seek legal advice.
Who should I choose as my Health and Welfare Lasting Power of Attorney?
There are some questions to consider when choosing who your Health and Welfare Lasting Power of Attorney should be, such as:
- Is the person over 18 years old?
- Are they mentally capable of making decisions for you?
- Are they someone you trust to make good decisions on your behalf? (Remember, you do not need to choose a family member, but the person should be trustworthy)
- Do they know you will be appointing them as your Lasting Power of Attorney? And are they in agreement with this decision?
- Do they understand your wishes for the future of your care, and will they respect and fight for these?
- Do they have the time and ability to be involved in your long-term care if needed?
- Would it be best to have multiple people as your Lasting Power of Attorney?
Where do I go for support to obtain a Health and Welfare Lasting Power of Attorney?
Although creating a Lasting Power of Attorney document on the government website is a relatively simple process, it can seem overwhelming when you are unsure of how this works and whether or not you are doing things correctly. We hope this guide offers more insight into the process, but if you think you need further assistance you can speak to the Office of the Public Guardian to ask for help, or speak to a solicitor if you would feel more comfortable doing so. You can look for a qualified solicitor using the Law Society online directory.
Remember, if you are helping an older loved one go through the process of creating a Lasting Power of Attorney, always involve them as much as possible so they feel in control of their future and that their health decisions are always going to be in good hands.
Home Instead is an award-winning home care provider and part of a worldwide organisation devoted to providing the highest-quality relationship-led care for older people in their own homes. Arranging care for yourself or your loved one shouldn’t be stressful at any time of life, so whatever questions you would like answered, feel free to reach out to the Home Instead team to discuss your needs.