In October 2007 a new kind of power of attorney was introduced in the UK: a Lasting Power of Attorney (LPA). This replaced the previous Enduring Power of Attorney (EPA).
Essentially, by giving someone power of attorney, you are granting them the power to look after your affairs should you become unable to.
There are two main kinds of LPA:
- Property and Financial Affairs
- Health and Welfare
However, if you have an EPA, and it was made and signed prior to October 2007, you can still use this for property and financial affairs.
If on the other hand you find yourself in the position of having to make decisions about your relative’s actual medical treatment and care, then you would almost certainly need a Health and Welfare power.
Families often ask us which power of attorney they can use to act on their relative’s behalf in Continuing Healthcare assessments and appeals. Some local authority and NHS staff tell families they have to have a Health and Welfare power and, if they haven’t got one, they can’t deal with any Continuing Healthcare matters.
On page 5 of the Decision Support Tool (the Dept of Health guidelines for the main Continuing Healthcare assessment) the NHS states:
“A third party cannot give or refuse consent for an assessment for NHS Continuing Healthcare on behalf of a person who lacks [mental] capacity unless they have a valid and applicable Lasting Power of Attorney (Welfare) or they have been appointed a Welfare Deputy by the Court of Protection.”
This leads many people to doubt whether their financial LPA will be valid, and also whether they can still use an EPA.
In our view, the above paragraph from the Dept of Health guidelines is misleading on two fronts:
- It fails to take account of the purely financial nature of Continuing Healthcare funding assessments and appeals. These are all about money – by default! – and so this is clearly a financial matter. To date, and as far as we know, ALL our clients have used financial powers of attorney (Property and Financial Affairs) – not Health and Welfare – to act on a relative’s behalf in Continuing Healthcare assessments and appeals.
- EPAs, as well as LPAs, are perfectly valid to use in this context, as long as they were set up and signed prior to October 2007.
So if you have a financial LPA or a signed old-style EPA and you’re told you can’t use it to fight for Continuing Healthcare funding, stick to your guns and remind the authorities that this is all about money.