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.
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:
- 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
- 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.
For 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.
© 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.