Why a Health and Welfare Power of Attorney is a good idea
A Health & Welfare Lasting Power of Attorney is a legal document that allows you to appoint people you trust to make decisions about health treatments and personal care for you if you lose the mental capacity to make such decisions for yourself.
This document explains how this document gives your healthcare attorney the power to make decisions, on your behalf and in your best interests, with regard to things like eating, washing, medical care, where you should live, or whether to continue life-sustaining treatment. The exact decisions they can take for you will depend on your instructions. For example, an attorney can only consent to or refuse life-sustaining treatment on your behalf if you specifically state this.
You can give your healthcare attorney the power to refuse medication or particular types of treatment, such as:
• cardiac resuscitation after a heart attack;
• a blood transfusion, for example if you do not want one for religious reasons; or
• electroconvulsive therapy.
Your healthcare attorney is not allowed to refuse treatment for you if:
• you have the capacity to refuse the treatment for yourself;
• the treatment is prescribed by the clinician in charge after you have been sectioned under the Mental Health Act (the only treatment your attorney has the power to refuse in such circumstances is electroconvulsive therapy); or
• it is an emergency situation and the treatment is considered life-saving (unless you have made it clear that life-saving treatment should be refused).
A healthcare and welfare attorney cannot make decisions about your finances, business affairs or property matters. If you want an attorney to do this, you would need to make a separate Property and Financial Affairs Lasting Power of Attorney.
When does a Lasting Power of Attorney come into force?
Health and welfare attorneys will only start making such decisions for you if you lose mental capacity. This may happen due to mental health problems, a brain injury caused by an accident or a stroke, alcohol or drug abuse, a learning disability, or as a result of a condition such as dementia.
Under the Mental Capacity Act 2005, you would be judged to have lost mental capacity if you were unable to:
• understand the information relevant to the decision;
• retain that information;
• use or weigh that information as part of the process of making the decision; or
• communicate your decision, whether by talking, using sign language or any other means.
There is a two-stage test that must be applied to decide whether you have mental capacity. This involves asking:
• if there is an impairment of or disturbance in the functioning of your mind or brain? And, if so:
• is the impairment or disturbance sufficient that you lack the capacity to make a particular decision?
Your family or carers will usually be responsible for deciding if you have mental capacity in everyday cases. For example, a formal assessment by a healthcare professional will not be required to decide whether you are able to dress or cook for yourself. Where more complex decisions are involved, such as consent for surgery, a doctor or healthcare professional will decide whether or not you have capacity to consent.
It is your attorney’s duty, as far as possible, to help you make your own decisions. The law is clear that assumptions made about your lack of capacity cannot be based on your age, appearance or condition. Just because you are incapable of making one kind of decision does not automatically mean you cannot make other types of decision – this needs to be assessed on a case-by-case basis.
It is a good idea to get advice from a specialist solicitor to guide you through the process of making a Power of Attorney. They can advise you on selecting the right attorneys, talk you through the sorts of decisions that might be required if you lose mental capacity, and outline your options to ensure that your wishes are known. They will also ensure that the form is completed correctly and is legally valid.
If you need help with setting up a Health and Welfare Lasting Power of Attorney, please contact Deborah Adams, Director of Private Client Department at Parnalls Solicitors on 01566 772375 or email firstname.lastname@example.org
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
Have you had an accident involving a horse?
Help to Buy – beware of some cracks in the structure
Understanding Lasting Powers of Attorney
Changes to Energy Performance Certificate for Landlords
Had a cycling accident? Your route to obtaining compensation
New year, new home: tips to sell your home in the New Year
Tax Planning for your inheritance
Hearing loss: when your employer may be liable
Buying a home for your retirement, five things you need to consider
Farmers plan to diversify after Brexit
Ministers press ahead with probate fee shake-up - reports BBC News
Botched dental treatment? You may be entitled to compensation
Why a Health and Welfare Power of Attorney is a good idea
Will the new charge on building developments in Cornwall affect you?
Energy Performance Certificates – Do They Matter?
HMRC Challenging Stamp Duty Land Tax Payments
Ben Mitchell qualifies as a solicitor
The potential implications of Brexit on employment law
Appointing a guardian for your children
Houses in multiple occupation – new rules from October 2018
New Agriculture Bill published
Will Brexit affect my pension?
Dreaming of a holiday home? Sort out the legals before putting your feet up
Lasting Power of Attorney by Deborah Adams
Settled status after Brexit by Alexis Hager
How to choose an executor to administer your estate when you die
How overage agreements can boost profits from your land
Top tips for first-time buyers
How Could Brexit Affect My Farm?
Wills & Succession in Spain by Deborah Adams
Brexit – an international and local view by Alexis Hager, Litigation
Capital gains tax - important facts for non-residents of the UK
Buying a home: the importance of making sure the seller is entitled to sell
Changing a will after someone has died: it is possible and it could save you money
Your responsibilities when you have people working in your home
Sad passing of Battle of Britain pilot who served with Parnall family member
Considerations when buying a heritage property
Disciplinary proceedings at work: guide for employers
Employers should have a disciplinary process in place, but just following this may not be enough to avoid falling foul of the law and exposing yourself to the risk of an employment tribunal claim.