Lasting Power of Attorney for Health and Welfare – do I need this?

The current LPA system allows you to appoint Attorneys to make decisions about your health and welfare if you lose mental capacity; prior to 2007, you could only appoint Attorneys to make financial decisions for you.

So what did people do about health and welfare decisions before 2007? Some people made an Advance Directive (also known as a Living Will or Advance Decision), which states the types of medical treatment you would wish to refuse or accept under various circumstances, but the scope of these documents is somewhat limited. You can still make an Advance Directive, but you may wish to make more wide-reaching provisions under an LPA.

Prior to 2007, when an incapacitated person needed a medical or care decision made for them, it was usual for healthcare professionals and Social Services to consult with that person’s next of kin, and often a consensus would be reached. This is still the case where there is no LPA in place – usually. The NHS website states that generally, you can expect professionals to make decisions about your health and social care and the law does state that decisions must be made in that person’s ‘best interests’. But who is best placed to know what those ‘best interests’ might be? The professionals can provide excellent general advice, but they cannot get inside the head of the person concerned, to predict how they would feel about a particular issue.

In October 2007, my advice to clients was usually that the system had functioned reasonably well without LPAs for many years, so you could probably rely on the healthcare profession and Social Services to work with next of kin to get things right; the default position seemed to be adequate.

Over the last 9 years, evidence from clients suggests that attitudes are shifting, as the NHS and Local Authorities become accustomed to the LPA system; if there is no Attorney in place, the professional decision-makers often take the view that they can proceed unchallenged.

Here are some real-life examples.

Example 1

A 94-year-old lady tells her family that if she becomes terminally ill, she would not want aggressive treatment and would rather be left to die peacefully. Her doctors understandably wish to preserve her life. Fortunately, she has made an LPA and the doctors are able to follow instructions from her Attorney, without delving into the ‘best interests’ debate, and without fear of being sued. Everyone involved is comfortable with this very difficult decision and, most importantly, her wishes are followed.

Example 2

A man in his 70s has a stroke, leaving him with no mobility or speech, but with full mental capacity and no other health issues. He goes into a care home for 2 weeks’ respite care. Upon visiting him, his wife finds a ‘Do Not Resuscitate’ order in his notes. When she challenges this, the home refuses to remove it as there is no LPA in place.

Example 3

A man was admitted to hospital, having no mental capacity due to dementia and his wife finds him bruised and witnesses him being mistreated by the hospital staff. The hospital refuses to speak to his wife at all about his ‘care’ because she does not have authority without a registered LPA.

I stress that these instances do not reflect any formal NHS or care home policy statements or practices. But oftentimes, Attorneys of clients who have LPAs for Health and Welfare are extremely relieved to be able to rely upon them; the families of those who do not have them are left feeling frustrated, angry and impotent, with their relatives left in a very vulnerable position.

It is impossible to predict what decisions might need to be made for us in the future. Whilst the majority of NHS staff and social workers do an outstanding job and have every individual’s best interests at heart, my advice to clients is now this: if you want to express your wishes about your care and medical treatment after incapacity, and you want your family to have a ‘trump card’ when it comes to your care, then you ought to make an LPA for Health and Welfare. The best person to know who should make your decisions for you, is you.

Carli Colby is a solicitor at Franklins Solicitors of Walton House, 15 Ock Street, Abingdon Oxon OX14 5AN. 
Carli specialises in Wills & Probate, Powers of Attorney and Court of Protection work. carlic@franklins-solicitors.co.uk  01235 553 222