Health and Welfare Lasting Power of Attorney – the consequences of not having one

Health and Welfare Lasting Power of Attorney – the consequences of not having one

The dangers of leaving a Health and Welfare Lasting Power of Attorney until later…

Today’s article is from Kathryn O’Reilly, Solicitor at Franklins Solicitors LLP in Milton Keynes. In this article Kathryn highlights key points about a Health and Welfare Lasting Power of Attorney – and the consequences of not having one.

Kathryn O'Reilly, Solicitor, Franklins Solicitors LLP explains Health and Welfare Lasting Power of Attorney - and the consequences of not having oneShe explains…

Health and welfare decisions are not easy to make, especially when a person is making them on behalf of someone who lacks the capacity to make these decisions themselves.

There are two types of Lasting Power of Attorney; these allow someone to act on your behalf should you become unable to do so:

  • Property and Financial Affairs Lasting Power of Attorney
  • Health and Welfare Lasting Power of Attorney

Both are extremely important. However, many people set up a Financial Power of Attorney but leave the Health and Welfare Lasting Power of Attorney ‘for a later date’.

If you do not have a Lasting Power of Attorney, whether for Property and Financial Affairs or Health and Welfare, your Attorneys will have to apply to the Court of Protection for a Deputyship Order.

Let’s look at a Health and Welfare Lasting Power of Attorney – the consequences of not having one

What many people don’t realise is that, if you leave the Health and Welfare Lasting Power of Attorney until it’s too late, effectively forcing a family member to apply for a Court of Protection Deputyship order, there’s a good chance the Court will reject that application.

What does the Health and Welfare Lasting Power of Attorney cover?

In a Health and Welfare Power of Attorney, unless you deliberately add restrictions or conditions in your Lasting Power of Attorney, your Attorneys will have general authority to make all personal welfare, including health care decisions, once you lack the capacity to make these decisions yourself.

Health and welfare decisions could include decisions about your place of residence, your day-to-day care including your diet and dress, who you may have contact with and consenting or refusing medical examination and treatment on your behalf.

In the Health and Welfare Power of Attorney, you also have the ability to decide whether you would like your Attorneys to give or refuse consent to life-sustaining treatment on your behalf. The Lasting Power of Attorney does not automatically allow these types of decisions to be made, but you can extend your Attorney’s powers to do so if you so wish.

Many Health and Welfare Deputyship applications are rejected by the Court

If you have left the Health and Welfare Power of Attorney ‘until later’, and then you lose capacity to make decisions for yourself, your Attorneys will need to apply to the Court of Protection for a Deputyship Order.

However, many people are not always aware that Health and Welfare Deputy Orders are granted much more sparingly – and many are rejected by the Court.

Before the Court will even consider an application for a Health and Welfare Deputy they will first need to decide whether to grant permission for the application to be heard, to ensure the application is actually necessary and well founded.

The Court can be reluctant to give permission, and the number of successful Health and Welfare Deputyship Orders has reduced. Here’s why…

When deciding whether to appoint a Health and Welfare Deputy to act in relation to an incapacitated individual’s affairs, the Court applies the following principles:

  1. a decision of the Court is preferred to the appointment of a Deputy (i.e. the Court itself prefers to make decisions about a person’s health and welfare, rather than granting a Deputyship Order to someone else); and
  2. the powers conferred on a Deputy should be limited in scope and duration as is reasonably practicable in the circumstances.

Health and Welfare Deputyship Orders – a last resort

Following these principles a Health and Welfare Deputyship Order would therefore only be given as a last resort when the Court itself cannot make a one off decision about the matter in question.

It means that the Court is unlikely to appoint a Deputy to deal with day-to-day health and welfare matters.

Section 5 of the Mental Capacity Act confers a general authority to allow decision makers to take action in providing care for individuals who lack capacity, as long as those decisions are in the best interests of the incapacitated individual, and all reasonable steps have been made to ensure the person in question cannot make the decision for himself.

Deciding what is in a person’s ‘best interests’ will ultimately lie with the medical professionals responsible for care. A problem could therefore arise if there was a dispute with, say, the family members and the medical professionals as to what is within the person’s ‘best interests’.

Without a Health and Welfare Lasting Power of Attorney in place all major decisions can only be made by the Court, such as withdrawal of artificial nutrition and hydration or in cases where a particular treatment is in dispute.

When might a Health and Welfare Deputyship Order be permitted?

The appointment of deputies for health and welfare decisions would therefore only be allowed in the most difficult cases, where important and necessary actions cannot be carried out without the Court’s authority – or there is no other way of settling the matter that would be in the best interests of the person in question.

If a series of health and welfare-linked decisions need to be made over time and it would not be appropriate or reasonable for the Court to have to make all of these decisions, the Court may make a Deputyship Order. This would also be the case where there would be a detrimental effect on the person’s future care unless a Deputy was appointed.

Make a Health and Welfare Lasting Power of Attorney now

However, the Court of Protection Deputyship route is costly and time consuming – much more so that having a Health and Welfare Lasting Power of Attorney in place to start with. This is why, whenever possible, it is advisable to make a Health and Welfare Lasting Power of Attorney now, appointing someone you trust implicitly to make these decisions on your behalf when you are unable to.

This also gives the Attorneys the chance to understand your wishes and views. Furthermore, there would then be no need to consider a Deputyship appointment from the Court of Protection, nor would that person need to rely on Section 5 of the Mental Capacity Act.

Instead, the Attorney would have the legal authority to make decisions on your behalf when you are unable to do so, in accordance with the powers granted by the Lasting Power of Attorney. This may also include consenting to or refusing life-sustaining treatment if you have authorised the Attorney to do so.

Franklins Solicitors LLP logo; contact Franklins for information on Health and Welfare Lasting Power of AttorneyFor more advice about Lasting Powers of Attorney email Kathryn O’Reilly at Franklins Solicitors LLP or call 01908 660966. Franklins is currently offering all readers a 10% discount on the preparation of Lasting Powers of Attorney if instructed within 28 days of the date of this article.

Alternatively, read more about Lasting Powers of Attorney on the Franklins website.

© Franklins Solicitors LLP, 2014.  The contents of this piece are for general information only and should not be relied upon as legal advice. Readers should be aware that the law and practice may change from time to time and professional legal advice should always be sought before taking or refraining from any action due to the contents of this article.

42 Comments

  1. Sue Hickman 3 months ago

    The frustration I have that I have no POA for my now severely demented 89 year old mother is immense. She would NOT have it when I could see the very early signs back in 2004. Said it was a waste of money but preferred to throw money at shopping channels like QVC buying garbage. I am so lucky that the care home I am in the manager’s attitude is that she will judge relatives on her experience with how they treat their relative. She knows that I only have my mother’s best interests at heart & she discusses everything with me. My mother’s GP knows me well too so again I am very lucky with that. However, hospital staff are very quick to ram it down your throat, same with social workers. This is so unfair but as her GP said to me the only one responsible for this is your mother. She has been a very very silly woman in not safeguarding her future. Luckily, I managed to convince my Father to let me have POA over him once my mother went into care in 2009. I took him to get advice from a solicitor & he told him that without a POA he would be alone & strangers who did not give a hoot about him would make all the wrong decisions. It was a Godsend when he was dying. Twice I told the hospital to back off & waved the POA in their face as they were trying to dictate & make decisions about him I know he would have hated. Is anyone out there as frustrated as me about their relative? I would love to hear from you.

    • Stewart Baker 3 months ago

      Sue, I have to say, having read your comment, that last year we were in a similar position. My wife had POA for her mum for several years before she exhibited symptoms of dementia, around 18 months ago. It became apparent to us and the friends that knew her that last year she could no longer cope living alone and 22 miles away from us. However, even with the POA we were unable to convince the appointed social worker that she needed full time care, which we would be paying for. Indeed at one point the threat of court action was promised if we took it upon ourselves to move her into a care home. My mother in-law had convinced these ‘health care professionals’ that, yes of course she did her own cooking, washing , ironing, cleaning etc. We knew that she was not able to do any of these things. It was a great struggle and very stressful at the time, and we came to realise that having a POA was of very little use in these circumstances.

      • Sue Hickman 3 months ago

        Stewart I agree with some of what you have said. I did have it for my late Father & at times I wondered why. The bottom line is, Social workers, hospitals really try it on by bullying you into believing its worthless. We had a terrible time with the so called rehab hospital they sent my Dad to. I would love to name it but probably cannot for legal reasons. Lies were told about us a family as the care was truly appalling & I jumped up & down all the time.They allowed my Dad to constantly soil himself ignoring wen he was calling out he needed the toilet. I had a nurse swear at me calling me a bloody nuisance ” Of course she denied it but it was true. They then threatened me with a safeguard because one evening when visiting my Dad was really nasty & abusive to me & my husband. Because I leaned over him to talk quietly to him to try & calm him down they accused me of threatening behaviour. They also said that my husband stood in the doorway to the day lounge & stopped a nurse from entering. My husband would have to be 10 foot wide to stop anyone entering or departing! There is masses more that happened but too much to go into. It was all done to try & shut us up & it seriously backfired on them. We were summoned to a meeting. Eight people sat in front of us. It was like an inquisition & then came out with all this crap that we were dangerous to Dad My husband demanded that if they had cause for concern to call the police in. They were huffing & puffing so my husband pulled out his IPhone. One of the doctors asked him what he was dong & my husband said ” calling the police”. Oh how fast they back peddled! I then pulled out the POA & said to them that they would do nothing regarding my Father without my approval. They were really in a blind panic because they knew they had made up lies about us & I threatened to take them to the Court of Protection. That night in some ways fortunate my Dad had to be taken back to the proper hospital & got out of that rehab place. That hospital totally respected I had POA & discussed everything with me.My Dad passed away a couple of weeks later & my husband then made the biggest complaint involving our MP who asked them to produce evidence that we had done what they said. Of course they couldn’t. but it had added to stress on me when my Dad was dying that was cruel.

        • Stewart 3 months ago

          What a terrible situation to be in for you all. It’s a very sad indictment of some aspects of the NHS/ social services. Also, our local MPs were very helpful in chasing up ‘lost’ medical records. One shouldn’t have to use a sledgehammer to crack a nut, but we find, increasingly, the intransigent attitude of some authorities, leaves no option.

  2. Heather 5 months ago

    Hi please can you help me . I was confronted today at hospital for reading my mums file which is left at the bottom of the bed . I was told I need a letter to read this .my mum in on Waffen and they had dose her wrongly. And she could have been in a dangerous situation if I hadn’t of bought this to the attention of the nurse. Instead I got told of for reading her note s . Is this right

  3. Andrew 6 months ago

    If someone holding a lasting power of attorney (health and welfare) for a Loved One and expresses a wish that their Loved One continue receiving a drug which is regulating and stabilising a bodily function and the LO’s clinician decides to disregard your wishes, is there anything that can be done?

    • Author
      Angela Sherman 6 months ago

      Andrew – you may want to take advice from the Court of Protection on this: https://www.gov.uk/make-decisions-for-someone. Alternatively, seek advice from a Wills & Trusts solicitor.

    • Hazel 6 months ago

      Thank you Angela

    • Sue Hickman 3 months ago

      If you have POA you have the right to ask them to justify their actions & explain why they are doing it. Their is also a little thing called duty of care, a moral & legal obligation to a patient.

  4. Hazel Bassett 7 months ago

    Hi my husband and I have PofA for my mother in law who is in a care home and has been for 9 months. We had reason to ask the bank for bank statement copies going back 6 years . This has confirmed that a family member has been helping himself to her money by using her bank card. He denies this and with large cheques made out to him he says that these were gifts and she was of sound mind. Some of this goes back 6 years. Do we have a case against him?
    Also regarding the PofA are we able to stop him going to visit mother in law? She was always frightened of him visiting her at her own house and now she doesn’t even know who he is. Advise please

    • Author
      Angela Sherman 6 months ago

      Hazel – that sounds very serious. I would strongly recommend taking legal advice on this.

  5. philip jones 11 months ago

    thankyou Angela

  6. Philip jones 11 months ago

    I’m firstly a carer for mum and advocate, isn’t that sufficient for most social care and health situations and where GP’s social workers etc will cooperate, and the rest are ones where a patient or resident has unusual interests, which my mother doesn’t have, or are they commonplace matters?

    • Author
      Angela Sherman 11 months ago

      You can’t always rely on people cooperating if you don’t have power of attorney. I understand what you’re saying here, but keep in mind also that you can’t predict what may happen in the future and when you may wish you had the LPA.

  7. Philip jones 11 months ago

    I care for my elderly 89 y mother in the family home where I live too, 59 but with mental illness so she cares for me too. my sister and I were concerned with the speed and cost of the LPA health and welfare after I invited a solicitor to the home. We are wondering whether mum wants to grant POA health and welfare, or whether it’s needed: mum isn’t asking for one, I am asking her about it and she tells me things like I’d like to stay at home than go in a care home, that’s all, she was never one for paperwork or legal things anyway. I wish this LPA form wasn’t necessary – and maybe it isn’t. I don’t know what to do. Thank you for your time and help.

    • Author
      Angela Sherman 11 months ago

      One of the things to keep in mind is that right now may be the only time your mum can make an LPA – on account of her cognitive state; in the near future she may not have the capacity to do that, and yet you could find yourself in situations in the future where you need it.

  8. Philip jones 11 months ago

    Mum isn’t asking for an LPA health and welfare. I suggested it to her and tried to explain what it’s for. My sister and I would have preferred to take mum to her familiar GP, but she left last week anyway or her familiar legal person but she has left, instead I invited a solicitor to the house and explained things to mum beforehand, she signed the forms and took them, but they are on hold as my sister requests- she thinks it was all too quick and costly. Then also my befriender from carers support who cares for his disabled wife very well says it’s only if there’s a legal struggle in future which is unlikely, and that being a registered carer is enough with the Care Act, contrary to what some charities are saying in their factsheets on LPA health and welfare. I have to say I’m quite distressed so far and suffer mental problems anyway.

  9. Stewart Baker 11 months ago

    In reply to Philip I would say that POA was OK for day to day financial administration for my mother in law, and indeed was ignored for the purposes of best possible long term care options. I will say again that we were given no choice in these options, presumably to protect the welfare of MIL against unscrupulous relatives. The Parliamentary health ombudsman is very much a last resort option, and as such will not be of any use to someone in desperate need. They will prevaricate by offering any alternative except any positive action on your behalf.

  10. Philip jones 11 months ago

    a follow up question if I may:
    there will be unforeseen circumstances where a loved one is being poorly cared or treated, as in some of the comments above, but:
    1) a comment above said his POA was not much use and even overlooked
    2) you can complain, up to the level of ombudsman if need to and without an LPA
    also, for most situations, care and treatment is ok and you wouldn’t want an LPA and the burden of decisions for a loved one, and rather place them in the hands of a GP, consultant, care home etc but with your family input.

    • Author
      Angela Sherman 11 months ago

      Philip – thanks for your comments. Does your specific question relate to whether the GP could have overseen the LPA?

  11. Philip jones 11 months ago

    We are setting up a lasting power of attorney, health and welfare for my elderly frail mum whom as son I live with and care for, my sister works in the NHS with brain rehabilitation and considers that mum didn’t really know what she was signing when a solicitor came to the home at my request with an LPA form. I was there and mum did talk it through with, answered questions etc, though mum forgot the next day, maybe my sister is right that a formal mental capacity assessment would show mum didn’t really know and so was in a vulnerable situation with the solicitor, the solicitor doesn’t have to do it and told me she had no doubt of mum capacity on the day. Maybe it would have been better to take mum to her GP who knows her well, but she has just left.

  12. Julie Bridger 11 months ago

    My sister and I have POA for my mother, both financial and health & welfare. She has parkinson disease with associated dementia and has been ‘chair bound’ for the past four years. She has no upper body strength, has not used her legs for four years, has arthritis in her knees, hips and back and is doubly incontinent, she has now developed a nasty pressure sore. The district nurse insisted that she be put in a bed so that it would be easier for them to deal with the wound Since she has been in the bed she has deteriorated to such a degree that she is now not eating and is losing body weight rapidly, she cannot communicate as she is so weak and is sleeping most of the time. A review meeting was conducted yesterday with 4 health professionals, the District nurse and an assistant, a social worker, and a representative from the care provider. They were advised that we had POA for my mother in relation to health & welfare, but seem to be on a mission to put more ‘care’ in place, saying that she needed to be turned at night, suggesting that it would be better for this to be done at two hour intervals, – mum winces every time she is turned, she is obviously in pain, it then transpired that she is having no pain relief, the carers are not allowed to administer it, the DN is only going in to dress that wound every other day and so is not giving it either. Mum is having difficulty swallowing and therefore is not taking her medication – we are waiting for an assessment from the doctor to see if she needs ‘end of life’ care which would be fully funded – if the doctor assesses her and feels she doesn’t warrant this then the social worker has indicated that she would have to go into a nursing home, completely contrary to mum’s wishes. She said she would send someone round to discuss selling mums flat – if we, the family, cannot afford to fund ’round the clock care’. My mother has said to me on a number of occasions that she didn’t want to go on – I am feeling completely stressed out by the fact that no-one is listening to us, the POA seems completely inadequate, not once yesterday did any of these so call ‘health professionals’ ask us what my mother would have wanted – how do we deal with them, we need advice…. so sorry to ramble but am at my wits end, seeing mum so poorly and having all these other people telling us what they are going to do without taking giving any credence to she has told us she wants is so frustrating. I feel a though she is being held hostage to the ‘system’ – their remit seems to be to keep her going no matter what her quality of life is – she can no longer do anything for herself – she would not want to live like this, and it is killing us to watch her. Can we insist that she be allowed to sleep undisturbed during the night? It seems so cruel to wake her, cause her so much pain every couple of hours in the vain hope that the sore (it is so deep it is not going to heal) will get better.

    • Author
      Angela Sherman 11 months ago

      Julie – that sounds like such a difficult situation for you, and of course for your mum – to say the least. Watching someone you love deteriorate can be so very hard, can’t it – especially when you’re fighting the ‘system’ at the same time. A few points: The priority is for the safety and wellbeing of your mum; if the current carers (is she at home?) are unable to provide that care (e.g. pain relief) then it could be that a different care provider or a different location may (potentially) be necessary. I can’t say definitively here. However, don’t take the social worker’s statement as fact. Similarly your question about allowing your mum to sleep undisturbed comes down to her safety, i.e. the further risk to her skin. The social worker is also quite wrong to talk about selling your mum’s flat. The first thing the social worker should do (and should have done before now) is to refer your mum for a Continuing Healthcare assessment. The social worker has a legal duty to do that under the Care Act.

  13. Karl Mullee 1 year ago

    My Dad is in late stage Alzheimers and unfortunately, as with your article my Mum left the LPOA for Health and Well being until it was too late. My Dad is under Section 117 and in a Residential Care Home, unfortunately I have a Sister who for the past 3 years has had no involvement in Dad’s care and no knowledge of his condition as a consequence. She does, I know, disagree that he should be in care despite having been sectioned under MHA for a time and him now being very poorly. The situation is complicated as Dad had a family which he has not heard anything from for the past 30 years who now have started coming up to the home and doing things without his or our consent like taking photographs and for me generally acting suspicious around him. There is only one person who could’ve told them where my Dad is and that is my Sister. My concern is neither my Sister or my Dad’s previous family have any idea of his care needs, but I suspect and I know my Sister knows Mum and Dad didn’t have a LPOA for H/W, that they want to take him out of the Care Home he is in. My question is therefore can they take my Dad out of the Care Home he is in legitimately and without his next of kin’s consent as there is no LPOA in place? Thank you.

    • Author
      Angela Sherman 12 months ago

      That sounds like a very difficult situation, Karl. I very much doubt they can remove your dad in the way you suggest, and there would almost certainly have to be a best interests meeting first. You may, however, want to see some legal support on that, just to make sure you have covered all bases.

  14. Stewart Baker 1 year ago

    Yes. They may want to know about it, I’m sure I can’t say for certain. I suppose we must resort to legal representation. The very reason why a POA was taken out in the first place was to avoid this situation. I’m not impressed .

  15. Stewart Baker 1 year ago

    Sorry to disagree . My wife and her sister both have POA and are not being listened to in the slightest degree, concerning the welfare of their mother. Social services are totally in charge.

    • Author
      Angela Sherman 1 year ago

      I don’t doubt that you’re having problems, Stewart, from what you’ve said. If Social Services are ignoring a legal power, the Court of Protection may want to know about it.

  16. Stewart Baker 1 year ago

    I have to say that at the moment, we really cannot see the point of having POA. Its a lot of trouble to go to, takes time and effort and money, and has very dubious benefits. I certainly would hesitate to recommend this process to anyone in our position.

    • Author
      Angela Sherman 1 year ago

      Without a health power of attorney a person’s family may not have any say in how they are cared for. Remember that a health power is not simply an instrument to let someone else make decisions about care and welfare, but (vitally) it enables the person making the power to be very specific about what they do – and don’t – want in terms of their own treatment and care. Without this, doctors and care authorities are under no obligation to listen to the family. A financial power of attorney is vital for many things, and it can be very difficult to manage a person’s affairs without one.

  17. Stewart Baker 1 year ago

    A new development has taken place. On saturday the 9th April (16 days after her return home) my mother in law was found by the morning carer on the floor of the upstairs landing where she had probably been all night. The paramedics were called and she was again admitted to hospital, where she had been 6 weeks ago. Meantime the care company have been in touch to say that they can no longer look after my mother in law as she will not do the things that they recommend i.e. stay in bed in the morning until a carer arrives, use her walking frames, go to bed when the last carer calls at night. They have recommended full time care. The hospital have said that she is now ready to return home, but of course, now, there is no one there to help.
    So we find ourselves, as we predicted, back where we started. We told the social worker exactly what the mental state of my wife’s mother was, but she chose to ignore these facts and carry out her own agenda. This has led directly to my mother in law’s extreme distress and many, many sleepless nights for us as a family, because we are not being listened to.

  18. Stewart Baker 1 year ago

    As we have just discovered a mental capacity test was carried out, but we cannot obtain a copy until my wife’s mother has given her permission for us to see it, and she does not understand what the social worker is talking about, The s/w also has to get permissions from her manager.

  19. Stewart Baker 1 year ago

    Recently my 93 year old mother in law, who was living alone but with a lot of support from my wife, broke bones in her foot which required hospital treatment. She was then transferred to a respite unit for physiotherapy. She has been formally diagnosed with dementia in august 2105, so my wife was shocked when a social worker interviewed her mother and forbade her to be present and after 30 mins decided she was rational enough to be able to live at home with carer visits 4 times a day.
    My wife and her sister are convinced that the best course of action would be a care home, where she would receive round the clock care. Both POAs are therefore overruled by the social worker who has threatened court action if they go against her wishes. It is a very disappointing outcome as my wife still bears the main responsibility of looking after her mother and the house/ garden she lives in, and has to field dozens of phone calls from her mother every evening when her mother is confused. My wifes health has suffered greatly as a result and she is now on blood pressure tablets and cannot sleep at night for worrying. Have you any positive suggestions?

    • Author
      Angela Sherman 1 year ago

      Stewart – it sounds as though there should have been a proper Mental Capacity Test here before anyone made the assumption that your mother in law could be involved in such a decision. http://caretobedifferent.co.uk/mental-capacity-assessments/ if there was, there should be the paperwork to match. The social worker cannot ignore a POA; this is a legal document and gives your wife the authority to act on her mother’s behalf. I suspect the threat of court action is a bluff (I can’t imagine it holds any water!) or the social worker is simply ignorant of the rules and the law.

  20. Linda 1 year ago

    My mother was in care and was taken from there without my knowledge when she was sectioned and moved to a hospital, which was completely unable to deal with her challenging behaviour. I was on holiday when I received a phone call from the social worker involved. He asked who was the older, my sister or me. I replied, my sister and then he said that he would not talk to me as I was not the next of kin. I explained that my sister has Downs syndrome and would not be able to make any decisions or take any responsibility for mother. He then told me that it did not make any difference, he still could not talk to me. Where is the common sense? I refused to give him any contact details for my sister as I felt the need to protect her.

    • Author
      Angela Sherman 1 year ago

      That doesn’t sound right on the part of the social worker. Do you have power of attorney for your mother, Linda? And has there been a best interests meeting?

  21. Good article – but it’s also well worth pointing out that the lasting power of attorney really is an essential document for anybody who owns their own business – because without an LPA, any business whose owner becomes temporarily incapacitated could become paralysed – with disastrous financial consequences

  22. Mike Ross 3 years ago

    PoA Financial is the one I have as I’m my mother’s only family. She had a stroke 5 years ago and is in a residential home, so I was told that I needed the Financial bit to be able to access mum’s account and pay the bill at the home.
    At a recent assessment by the local council ordered by me for CHC funding, I could not attend this assessment and rand in to cancel this meeting. 3 days later, when I went to visit mum, this meeting had gone ahead dispite me saying that my mother didn’t like anyone medical around her without me being present. The meeting went ahead – because – I didn’t have Health & Welfare. I’m her only son – doesn’t that count! I know what is right for my mum, she can’t say as she is too frightened. I really find this to be criminal and I wish I could prove it.

    • Angela 3 years ago

      Thanks for your comment, Mike. You can act on behalf of someone else in the CHC assessment process with a financial power only. Sadly, many assessors either don’t know what they’re talking about or seem to try to put people off by saying families have to have a Health & Welfare power. This article may help: http://caretobedifferent.co.uk/enduring-powers-of-attorney-and-nhs-continuing-care/ Almost all of the families we help with CHC are using a financial power to act for their relatives. If this power has ever been questioned by assessors, the family has been able to insist that a financial power is valid – which of course it is. It’s still a good idea to have both – to cover other health-related decisions that may need to be made.

      • Chris Gallagher 3 years ago

        There is of course the accepted rule that one is operating in the best interest of the patient. Although in some circumstances that can lead to arguments with professionals that might have medical knowledge you lack.

        However it was sufficient to enable my Partner to keep her father alive for 9 months in a coma and then later twice consent to her usually cognizant father having a leg removed. All done in his best interests by his daughter without any attorney rights……..

  23. Edwina Smart 3 years ago

    In the care home my mother now lives, the staff wanted to put her to bed every afternoon against her wishes. She/We had to undergo meetings with social services and a Mental Capacity Assessment in order to allow her to make this decision. Luckily, she passed. My mother had the old EPA, thinking it covered both Financial and Health & Welfare and we had not been informed by our solicitor that we were not covered for both. Had this situation not arisen we would not have realised until it was ‘too late’. We immediately set up the POA H & W and feel relieved in doing so.

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