Published on: 13th November 2023

Is a Health and Welfare Lasting Power of Attorney Actually Necessary?

When discussing Lasting Power of Attorney (LPA) documents with clients and their families, it has become increasingly common for people to see the benefits to implementing a Property and Financial Affairs LPA, and to question whether a Health and Welfare LPA is actually necessary.

The simple answer is yes, a Health and Welfare LPA is just as useful as a Property and Financial Affairs LPA, albeit for different reasons.

A Health and Welfare LPA is a document that allows those you trust, such as your loved ones, to make decisions regarding your wellbeing once you no longer have the capacity to. In contrast to the Property and Financial Affairs LPA, the Health and Welfare LPA can only be used if the donor has lost capacity. The decisions made on the donors behalf must be made within their best interests, and so your attorneys should be those who would know your wishes and you trust.

When explaining what a Health and Welfare LPA is to clients, our consultants are often met with the assumption that a next of kin, such as a spouse or child, will be able to automatically take over the decision-making side of healthcare matters when the person in question is no longer able to. However, this is not necessarily the case. When a patient is incapacitated, whether that be because they are unconscious or suffering from a disease like dementia, a doctor has the right to provide, or abstain from providing, whatever treatment they believe to be within their patients’ best interests. Because of this, without a Health and Welfare LPA, families can end up having little say in their loved one’s medical treatment, and the solution to this would have been the very document that this article is focusing on – the Health and Welfare LPA.

Without a Health and Welfare LPA, there are a vast number of scenarios that could arise that could cause your loved ones issues when you are incapacitated. Such as:

• Doctors making decisions on your behalf. Whilst a doctor will make decisions within your best interests, they do not know you like your friends and family do. They may not be aware of particular wishes you held and so may end up making medical choices that you would have been unhappy with if you still had capacity.
• Doctors may still consult your next of kin and loved ones, but this does not mean that your family get the final say – a doctor may still overrule their opinion.
  
  
• In the case where long-term residential care is required, social services are known to take an interest in the decision-making process when considering which care home you reside in and what type of care you receive.
  
  
• Some people have very strong views on resuscitation. Without a Health and Welfare LPA in place for your loved ones to use, you may end up being resuscitated when it isn’t what you would have wanted.
  
  
• If there is a dispute over medical care being provided, the decision may lie with the Court of Protection, instead of your family. Applications to the Court of Protection can be very time-consuming and costly.

There are various benefits to implementing a Health and Welfare LPA, including:

• Saving money and precious time in scenarios where a situation may have led to a Court of Protection Application.
  
  
• Avoiding disagreements between your loved ones and medical professionals.
  
  
• Avoiding conflict between your family members. Families can be complicated and people may not always agree on what is the nest course of treatment. A Health and Welfare LPA means you can choose people to act and can ensure your attorneys are those who will be able to work together in harmony to make decisions that are within your best interests.
  
  
• Ensuring you are in control, even once you have lost capacity. By proactively deciding on who your attorneys are, you can be confident in the assumption that decisions are being made within your best interests.

To summarise, a Health and Welfare LPA has just as many benefits as a Property and Financial Affairs LPA, and we at Casey & Associates recommend that clients implement them both at the same time. Ensuring you have these important legal documents in place can be viewed as simply preparing for the future of not only yourself, but your family who may have to take over your affairs.

If you would like to speak with one of our Consultants to discuss any of the issues raised in this article or any other Estate Planning topic please telephone 01732 868190 or click here.

======================================

If you wish to give instructions or require general information about our Wills, Lasting Powers of Attorney, or Trusts then we will carry out a telephone or Zoom appointment.

However, if you wish to give instructions to one of our Consultants and you feel that you can only do this at a Face to Face meeting then we are offering, at our Consultant’s discretion, a limited number of Face to Face appointments in most of the areas we normally cover. To see the areas we normally cover please click here.

To arrange an appointment please telephone 01732 868190 or click here.

======================================

Back to all news