The Health and Welfare Lasting Power of Attorney

When you consider preparing a Property and Affairs Lasting Power of Attorney, you may also wish to consider preparing a Health and Welfare Power of Attorney. This type of Power of Attorney was not available to make previously, and these type of powers have only been in effect since 2007 when Lasting Powers of Attorney replaced Enduring Powers of Attorney.

What authority does the Health and Welfare Lasting Power of Attorney give?

A Health and Welfare Lasting Power of Attorney can extend to all or specified matters concerning the donor’s health and welfare, such as giving or refusing consent to medical treatment, arranging social care and support, and can give authority to the Attorneys to decide where the donor lives. Your Attorney cannot sell or buy property on your behalf unless they are also your Property and Financial Affairs Attorney.

Unlike a Property and Affairs LPA, the attorneys appointed by a Health and Welfare LPA are only able to act if you are not able to make decisions on these issues yourself.

How many Attorneys can I appoint?

The Health and Welfare LPA enables you to appoint one or more attorneys to make decisions about your medical care and welfare generally.

You are able to appoint up to four Attorneys, and four replacement Attorneys if you wish.

Life-sustaining treatment

One of the most important issues to consider when appointing your Attorneys is whether you give your Attorney the authority to give or refuse consent to life-sustaining treatment.

If you decide to give your Attorneys the authority to give or refuse consent to life-sustaining treatment, you will need to sign Option A. If you have prepared a previous Advance Decision, this Advance Decision will not be valid if the Donor has subsequently made a Health and Welfare LPA conferring authority to make decisions concerning the same treatment covered by the Advance Decision.

If you do not wish to give your Attorneys that authority, you will sign Option B. You may not wish to give your Attorneys that authority as you may have strong views on life-sustaining treatment, and therefore you may wish to prepare an Advance Decision, which reflects your wishes. The medical practitioner in your care will then be required to follow your decision.

The Attorney under a Health and Welfare LPA does not have the authority to authorise euthanasia or assist in the donor’s suicide, which remains a criminal offence.

Capacity

A donor must have capacity to prepare an LPA and the statutory test is set out in the Mental Capacity Act 2005.

What is mental capacity?

‘Mental capacity’ is the ability to make a specific decision at the time that it needs to be made. A lack of mental capacity is when a mind or brain problem stops a person making a specific decision when they need to.