A Brief Re-Introduction
There are two types of LPA; a Health and Welfare LPA and one governing your Property and Financial Affairs. Both equally important but serving two different purposes. In this short article, we’ll explore the importance of a Health and Welfare LPA.
Health and Welfare LPAs
In a recent report from the Office of the Public Guardian (OPG), it was reported that only 10% of all registrations of Lasting Powers of Attorney are for Health and Welfare. This is quite concerning to me as I am fully aware just how much an LPA for Health and Welfare is needed.
Why do I need an LPA for Health and Welfare?
Most people mistakenly believe that their spouse and/or children have the ‘right’ to make such decisions as they are ‘next of kin’.
Traditionally, we have all believed that our closest relative can be our next of kin, but in fact under UK law, there is no legal definition. This means it can be different according to the context being used.
Under the Mental Capacity Act 2005, which is the legislation which sets out the principles and the use of Lasting Powers of Attorney, no one has the ‘right’ to make decisions on behalf of any adult who lacks capacity – this applies to both financial and to health and welfare issues.
What happens if I do not have an LPA for Health and Welfare?
Essentially it means that if you lack capacity to make decisions about your health and welfare, then doctors and/or social services will assume responsibility of taking the decision under the Best Interest decision principle of the Mental Capacity Act 2005.
Under this principle and the guidance under the Code of Practice of the Mental Capacity Act 2005, this means that in reality a meeting will be called between professionals, and with a family representative (it is usually recommended that only 1 or 2 are involved), to discuss the options and to seek the views of those involved as to what might be best for you.
If you have a family member who is happy to act as your representative then they will ask that person to try and seek your views (not always possibly – especially if you are unconscious), as well as providing your past wishes, values and beliefs.
If there is no family, or there are serious divisions amongst family members, then it might be in your best interests to have an Independent Mental Capacity Advocate (IMCA) appointed to act on your behalf, who will then gather such information and bring to the table on your behalf.
The discussions can be in-depth and a decision may not be made immediately – and in some cases, I have known these to take several months for a decision to be made.
Without LPA’s for Health and Welfare, the NHS may refuse to provide hospital records which are absolutely necessary as evidence to support Continuing Health Care (CHC) eligibility, or prepare challenges/reviews of any adverse CHC decisions (such as no they won’t pay, despite there being a clear clinical need for nursing care rather than social care) made by CCG’s. Your attorneys (and your Executors) can ask for a review of such decisions, but your family, as next of kin, cannot without the legal authority to act on your behalf.
I would therefore encourage everyone to make an LPA for Health and Welfare so that you know that you have someone who is able to legally deal with these issues on your behalf. I would also encourage everyone to seek proper advice about LPAs in general so that you can be assured that your attorneys will be able to deal with everything that you may need. Without proper advice you may find that your attorneys actions are restricted.
If you have made your LPAs already, I am happy to review and advise you whether they are sufficient and cover your circumstances. Remember, if they haven’t yet been registered there is a chance they could be rejected by the Office of the Public Guardian so it’s better to be safe than sorry.
