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Published 04th March 2021 | Probate & Power of Attorney

Why having a Health and Welfare LPA is just as important as Property and Finances

If you were to lose mental capacity, a Health and Welfare LPA can help you appoint someone to make decisions about your affairs.

If you were to lose mental capacity, who would help you to make decisions about your affairs?

This is where having a Health and Welfare LPA (Lasting Power of Attorney) in place is vital. Most people think of this in terms of a Property and Finances LPA, which allows someone you have chosen to manage your financial affairs on your behalf should you lose capacity.

Not so many people think about a Health and Welfare LPA, and yet this can be just as vital for your future – should an LPA need to be activated.

What is the difference between the two types of LPA?

If you are left without the mental capacity to make important decisions, then you can legally authorise a loved one to make them on your behalf. There can be many reasons why this is needed at any time in your life, for example, after an accident or a serious illness which could cause a brain injury.

It is always best to be prepared and appoint one or more people to act as your Attorneys while you still have mental capacity, in case it becomes necessary in the future. This process will include specifying what decisions they can and cannot make.

A Property and Finances Attorney will be able to help manage your bank accounts and investments, as well as any assets such as property you may own. This may be appropriate, for example, should you go into a care home. You do have the opportunity at the time of setting up the LPA to impose any limitations you choose, including anything relating to your family home.

A Health and Welfare Attorney decides, among other things, your living arrangements, (e.g. whether you would be better off moving into a care home), and what kind of medical care is appropriate for you. These decisions should consider what you would have chosen yourself.

You may appoint one person for both LPA roles, in which case you must set up two different LPAs naming that person in each.

What happens if you do not appoint a Health and Welfare LPA?

If you should lose mental capacity without having arranged a Health and Welfare LPA, but you have a Property and Finances LPA, it could cause significant issues. People you trust to make crucial decisions, such as your spouse, siblings or children, will not have any automatic right to make decisions about your care or medical treatment. They may be consulted, of course, but there will be no guarantee their advice will be taken.

Or, they may not be consulted at all about your medical issues or the decisions that should be taken. The doctors treating you may feel that their duty of patient confidentiality does not allow them to discuss these matters with your relatives.

Similarly, long-term decisions about your care are likely to be made by social services. They will, of course, try to come to a decision that will be in your best interests, but this will be judged in terms of what they think is right for you. The social workers who make these decisions will probably never have met you before you lost capacity, and will certainly not understand your wishes and preferences in the way your partner or children, relatives or friends are likely to.

The case of Ylenia Angeli

A recent case, during the Covid-19 lockdown, highlights just how distressing this position can be, albeit in extreme circumstances. Former nurse Ylenia Angeli, whose 97-year-old mother was living in a care home, had been appointed Attorney for Property and Finances, but no Health and Welfare LPA had been arranged.

Ms Angeli’s mother was growing distressed at the lack of family visits during the lockdown and was quickly deteriorating. Ms Angeli came to the conclusion that the best course of action for her mother would be to take her home and care for her there herself.

When she started to put this into action she was stopped by police who had been summoned by the care home. She was arrested and her mother was taken back to the home. Although in the end Ms Angeli was released without charge, the whole affair was extremely distressing for all concerned.

If Ms Angeli had been appointed the Attorney for Health and Welfare as well as Property and Finance, she would have had the legal right to make the decision to change her mother’s living arrangements. Whether or not that would have been the best thing to do in this particular case, it does seem more likely that Ms Angeli would understand her mother’s wishes and preferences better than the care home staff.

Deputyship — the alternative to a Health and Welfare LPA

Without the appropriate LPA in place, the people you would trust most have no legal right to make decisions on your behalf should you lose mental capacity. There is a way to obtain this right, but it is a longer and more expensive process.

A loved one would need to apply to the Court of Protection to be appointed Deputy, giving them similar rights to an Attorney, but with restrictions. The process is so long that it could take up to a year before a decision is made. The various fees are considerably more than the modest cost of setting up an LPA, and some of these fees are due annually.

Besides the time and cost, two other factors make Deputyship trickier than an LPA. Firstly, Deputies remain under close scrutiny from the court. This is not necessarily a bad thing, of course, but it can place an extra burden on your family or friends.

The other factor is that there is no guarantee the Court of Protection will appoint the person you would wish as Deputy. The judge will obviously do their best to assess this, but they do not know you or what your wishes would have been.

An LPA allows you to have your say

All this can be avoided by taking control while you still have mental capacity, by appointing Attorneys to manage your Health and Welfare and your Property and Finances. This will ensure that all professionals, such as doctors and social services, are legally compelled to consult your appointed Attorneys before making any decision.

You can also include in your LPA any restrictions or binding wishes you choose, such as medical procedures you would not wish to undergo.

If you do not yet have Lasting Power of Attorney in place, contact our expert LPA team to discuss further how this could give you peace of mind and ensure your preferences continue to be consulted should you lose mental capacity.

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