Over 6 million people in the UK have protected themselves with a Health and Welfare LPA (Lasting Power of Attorney).
The Health and Welfare LPA is a clever solution that ensures your spouse, family member or a trusted friend, understands your wishes and can make decisions on your behalf when you lack the mental capacity do so.
It allows you to sleep easy in the knowledge that your wishes will be respected and that your loved ones will not have to suffer additional stress on top of an already difficult situation.
Unfortunately, if you don’t have a Health and Welfare LPA in place and you become unable to make decisions around your health and welfare, then your spouse or family members must apply to the Court of Protection for a Deputyship order if they want to make those decisions for you. This allows them to make specific decisions on your behalf.
However, applying for a Deputyship order is:
1. Expensive, stressful and time consuming.
2. Likely to be rejected.
The reason it is likely to be rejected is that the Court prefer to make decisions themselves around someone’s health and welfare, or appoint a Deputy for one specific decision alone. The Court do not usually make general orders giving someone authority to make all decisions from that point forward – which is what a Health and Welfare LPA does. So, what typically happens is that decisions are made for you by medical professionals, regardless of your wishes.
If you want to ensure your wishes are respected and save your spouse or relatives stress, time and money, then we invite you to contact Kathryn Caple, Head of Wills and Probate at Else Solicitors, confidentially on 01283 526230 or at kathryn.caple@elselaw.co.uk to discuss your options.
In this article, we will cover:
- Key Takeaway Points
- What Does a Health and Welfare Lasting Power of Attorney (LPA) Cover
- Why Do I Need a Health and Welfare LPA?
- What Happens if I Don’t Have a Health and Welfare LPA
- Why Else?
Key Takeaway Points
1. A Health and Welfare LPA allows you to nominate someone to make decisions on your behalf when you lack mental capacity. It can also document your wishes around your health care including vital things such as giving consent to or refusing life-sustaining treatment. This is important as views differ greatly. Some people would want to be revived, while others would not.
2. Mental capacity can be diminished in a variety of ways at any age. This could range from a brain injury sustained in an accident through to dementia which is affecting more people and can start as young as 30.
3. If you don’t have a registered Health and Welfare LPA, then medical professionals will make the decisions based on what is in your best interests. If your spouse or loved ones know that you would have wished otherwise, but doctors disagree, they need to apply to the Court for a Deputyship Order. This is a stressful and expensive process that can take months and most applications are rejected.
4. A Lasting Power of Attorney does not mean you are giving up control. It enables you to decide what happens. It allows you to choose who can make important decisions on your behalf when you are unable to do so. An LPA is just as important as having a Will.
If you want to control what happens to you and save your loved ones unnecessary stress, then a Health and Welfare LPA is a straightforward and inexpensive solution. We invite you to contact Kathryn Caple, Head of Wills and Probate, on 01283 526230 or at kathryn.caple@elselaw.co.uk.
What Does a Health and Welfare Lasting Power of Attorney (LPA) Cover?
Your Health and Welfare LPA enables you to nominate the person (or persons) you want to make health and welfare decisions on your behalf when you are unable to do so. This person is referred to as your Attorney.
Unlike a financial LPA, a Health and Welfare LPA can only be used if you have lost the mental capacity to make these decisions yourself.
Your LPA allows your Attorney to make decisions concerning:
- What you eat;
- What you wear;
- Who can visit you;
- Where you live e.g. in your own home or in a residential care home;
- If you can go out to visit friends, family or go on holiday
- Your medical care, including examinations and treatment.
You are also asked to decide whether you would like your Attorney to be able to give or refuse consent to life-sustaining treatment on your behalf. Your LPA does not automatically allow these types of decisions to be made, but you can extend your Attorney’s powers to do so if you wish.
You can also add restrictions or conditions to your LPA which limit the decisions your Attorney can make for you – for example if you do not wish to be resuscitated in certain circumstances, or have religious views which may affect medical treatment.
Why Do I Need a Health and Welfare LPA?
Few of us want to think about losing our mental capacity. However, given these statistics from the Alzheimer’s Society, it is worth planning ahead and easing the potential burden on your loved ones.
- There are 850,000 people with dementia in the UK, with numbers set to rise to over 1 million by 2025.
- 40,000 people with dementia are under 65.
- 225,000 will develop dementia this year, that’s one person every three minutes.
- 1 in 6 people over the age of 80 have dementia.
People can also lose mental capacity through:
- A brain injury sustained in an accident;
- A mental health condition;
- A stroke;
- A coma brought about by a tumour, diabetes, infections, seizures or toxins.
An accident can happen at any age so it is worth putting a Health and Welfare LPA in place.
What Happens if I Don’t Have a Health and Welfare LPA?
A few people decide to put off doing a Health and Welfare LPA until a later date. This is usually because they do not want to think about it or have that conversation with their spouse or relatives about their wishes.
This is perfectly understandable- it is a difficult conversation. However, it is much easier to have this conversation than what follows if you don’t.
If you lose mental capacity and you have not registered a valid Health and Welfare LPA, then your spouse or relatives cannot make critical decisions about your health and welfare. They must apply to the Court of Protection for a Deputyship Order to be able to make these decisions on your behalf.
This process includes making an application to the Court and supplying medical evidence. It can take several weeks to obtain a report on capacity from the doctor. When the application is submitted, they must pay a £400 commencement fee.
It can then take up to 5-6 months for the applicant to be appointed. Unfortunately, most Health and Welfare Deputy Order applications (around 70%) are rejected by the Court.
There are 3 reasons for this:
1. Section 5 of the Mental Capacity Act gives carers and healthcare professionals the authority to provide care for individuals who lack mental capacity, provided those decisions are in the best interests of the incapacitated individual.
2. When considering the appointment of a Deputy, the Court is required to follow the below principles:
i. A decision of the Court is to be preferred to the appointment of a Deputy
ii. The powers of the Deputy should be as limited in scope and duration as is practicable in the circumstances. In practice, a Deputy is rarely needed to decide on health care or personal welfare matters, as section 5 already gives carers and professionals the authority to act.
3. Personal welfare decisions invariably involve a consensus between the individuals connected with the person (e.g. healthcare professionals, carers, social workers and the family) about what decision is in the person’s best interests. If the Court appoints a personal welfare Deputy, it could upset the balance of that consensus, and could be seen to favour the Deputy’s views over others’.
So, a Health and Welfare Deputyship Order is only granted in cases where there would be a detrimental effect on the person’s future care unless a Deputy was appointed. This is usually where a series of health and welfare-linked decisions need to be made over time and it would be inappropriate or unreasonable for the Court to make all these decisions.
A Health and Welfare LPA protects your loved ones from this stressful and expensive process and ensures that your wishes are respected.
Why Choose Else?
Else has a great deal of experience in sensitively gathering the needed information and putting both financial and Health and Welfare LPAs in place. We understand that this is a difficult process for both you and your family and we will make you feel as comfortable as possible.
You will discover that we have an enviable reputation for always going the extra mile and offering a personal, jargon free service. You can rest easy that you are in trusted hands.
If you would like peace of mind that comes with having a Health and Welfare LPA in place and knowing that your wishes will be respected, then please contact our Head of Wills and Probate, Kathryn Caple, on 01283 526230 or at kathryn.caple@elselaw.co.uk. Kathryn is an experienced solicitor who is very sensitive to the needs of her clients.
We invite you to experience the Else difference today.