Health and Welfare Lasting Power of Attorney: Supporting Loved Ones When They Cannot Decide
When a loved one is admitted to hospital and loses the capacity to make decisions for themselves, a health and welfare lasting power of attorney (LPA) allows a trusted individual to step in and act on their behalf. However, what does that actually mean in real life situations, especially when there are differing opinions between family members or medical professionals?
In this article, we explain how a Health and Welfare LPA works in practice and how it can ensure that the donor’s wishes remain at the heart of every decision.
What is a Health and Welfare LPA?
A health and welfare Lasting Power of Attorney (LPA) is a legal document that allows a person (the donor) to appoint someone they trust (the attorney) to make decisions about their personal health and welfare but only if they lose the mental capacity to make those decisions themselves.
When does it apply?
The Health and Welfare LPA only comes into effect when the donor is assessed as lacking mental capacity. In a hospital setting, this could happen due to illness, injury or a medical condition that affects their ability to understand, retain or weigh up information.
What decisions can the Attorney make?
The attorney can make a wide range of decisions on behalf of the donor, including:
- Medical Treatment: Consenting to or refusing treatments (unless overridden by court).
- Daily Care Needs: Such as diet, washing and dressing.
- Where the donor should live: for example, whether they should remain in hospital or be discharged to a care facility.
- End of life care: if the LPA specifically gives permission, attorneys can make decisions about life-sustaining treatment.
What if there is more than one attorney?
If the donor has appointed more than one attorney, the LPA will state how they are to make decisions:
Jointly – All attorneys must agree on every decision. This can slow down urgent decisions and, if one attorney is unavailable or disagrees, it can lead to difficulties.
Jointly and Severally – attorneys can act together or independently. This offers more flexibility and is often preferred in practical situations like hospital care.
It is essential for attorneys to communicate clearly with each other and with professionals involved in the donor’s care. Where disagreements arise, they should focus on what the donor would have wanted and what is in their best interests.
Acting in the Donor’s best interests
Attorney’s must always act in the donor’s best interests. This includes:
- Considering any past or present wishes or beliefs the donor expressed.
- Consulting with family, carers or professionals if appropriate.
- Avoiding decisions that benefit themselves or others over the donor.
Disputes and how they are handled
Disagreements can sometimes arise between attorneys, family members or medical professionals, especially in complex or emotionally sensitive situations. If an attorney’s decision is questioned, hospital staff may request a meeting to discuss the matter and reach a resolution.
In cases where a serious disagreement cannot be resolved, the issue can be referred to the Court of Protection, which has the authority to make decisions about mental capacity and best interests, including whether the attorney’s actions are appropriate.
It is important for all parties involved to remain focused on what is genuinely in the donor’s best interests, taking into account their wishes, values and medical needs.
Role of hospital staff
Before an attorney can act, hospital staff must:
- Check that the LPA is valid and registered with the Office of the Public Guardian.
- Confirm the donor lacks the mental capacity to make the relevant decisions.
Once these checks are complete, the attorney has legal authority to be involved in care planning and decision making.
A Health and Welfare LPA ensures that a trusted person can step in to make personal care and medical decisions if someone becomes unable to do so. In hospital, this helps protect the individual’s wishes and ensures they receive care aligned with their values and best interests.
When to involve to the Office of the Public Guardian (OPG)
The OPG oversees the conduct of the attorneys and can be contacted if you believe;
- another attorney is acting improperly;
- Professionals are refusing to recognise your LPA authority or;
- the donor’s best interests are not being respected.
Need Advice or Support?
If you would like more information about Health and Welfare LPAs or need support making or using one, please get in touch with our Estate Planning Team. Our experienced advisors are here to guide you through every step and ensure that your wishes, or those of your loved ones, are protected and respected.
Contact us today to arrange a consultation with one of our experts.
