Like Sherlock Holmes himself, Property and Financial Affairs Lasting Powers of Attorney (PFA LPA) are usually the focus of clients at any meeting and, like Dr John Watson, the Health and Welfare Lasting Power of Attorney (HW LPA) is the undervalued sidekick.
Clients usually ask for a PFA LPA and are less keen to put in place a HW LPA because they feel it does not apply to them.
If you were unable to, who would you like to make the following decisions on your behalf?
- Daily routine (washing, dressing, eating)
- Medical care
- Where you live and who cares for you
- Who visits you
- Organ donation
- Life-sustaining treatment
In Britain, 70% of people would want their family to make medical and care decisions for them and 63% of people believe that their spouse can make medical and care decisions on their behalf.
To give your loved ones the authority to make these types of decisions you need to put in place a HW LPA. Without one the state is responsible for you and for making those decisions in your best interests.
A HW LPA gives you the opportunity to set out your wishes and enables your chosen attorneys to regain control from medical or social care professionals, to be involved in the decision making process and ensure your wishes are carried out.
What will happen if I don’t have a HW LPA?
If you do not have a HW LPA in place your family may be consulted but they will not have the legal authority to make decisions on your behalf. The people that medical or social care professionals consult may also not be the people that you would have chosen to appoint under a HW LPA.
If you have not put in place a HW LPA and someone would like to be appointed to make those decisions on your behalf they would have to apply to the Court of Protection for a deputyship order. The court process can be lengthy and complex and in the case of welfare and medical decisions a majority of applications are rejected due to the personal nature and impact of the decisions to be made. The exception to this is usually young adults who have ongoing high dependency needs.
"I’ll think about a HW LPA when I’m older…"
The number of people diagnosed with dementia in the UK has increased 53.4% in just over 10 years and due to increasing life expectancy it is estimated that by 2025 there will be one million people in the UK diagnosed with dementia.
It is also a misconception that HW LPAs are only required later in life with over 42,000 people under the age of 65 having dementia in the UK.
HW LPAs do not only guard against age-related diseases such as Alzheimer's or dementia. Loss of capacity can occur at any stage of life from long-term alcohol and substance abuse, brain injury following major trauma, motor neurone disease, early onset dementia and strokes.
I already have an Advance Decision – do I need a HW LPA?
An Advance Decision, also known as a Living Will, is a statement made by an individual relating to medical decisions that may have to be made when they do not have capacity. It is, in effect, a refusal of treatment form most commonly made by people diagnosed with a terminal or degenerative illness.
Due to the specific application of an Advance Decision it is difficult to draft a document which will cover all possible situations and treatments which might be available. As such, the medical professional making the treatment decision will take into consideration how long ago the document was signed, if there have been changes in your personal life and developments in medical treatment. If they are unsure whether they can rely on the document they will have to make an application to the Court.
An Advance Decision also does not cover ongoing general welfare and medical treatment decisions which might be required over a long period of time.
This makes Advance Decisions less effective in practice compared to a HW LPA and such wishes in relation to medical treatment can be incorporated into a HW LPA or detailed in a side letter of wishes.
Case in point: "Woman arrested for taking mum, 97, from care home" (BBC News)
Retired nurse, Ylenia Angeli, was arrested after she tried to take her 97-year-old mother from a care home before the second lockdown began. Ms Angeli said she wanted to care for her mother, who has dementia, at home and felt it was in her best interests to be with her family.
During the pandemic families have been kept apart by the restrictions on entering care homes and this has resulted in many vulnerable people suffering due to the lack of contact they have been able to have with their loved ones.
In this case, whilst the family had a PFA LPA for the mother they did not have a HW LPA which meant the care home and local authority had legal responsibility for her.
If Ms Angeli had been the chosen attorney under a HW LPA she would have had the right to decide what was in her mother's best interests, including where she should live.
Case solved
A HW LPA is not a silver bullet and will not be suitable for everyone but careful consideration of whether to put the document in place should be given.
Sherlock never solved a case without his trusty sidekick and PFA and HW LPAs need to be considered in the same way. Each document is equally as important as the other, covering different aspects of an individual's life, one being assets and the other being welfare, and supporting them through difficult times.
If you would like to discuss putting in place a HW LPA please contact a member of our private client team.