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  • Writer's pictureBrenden OSullivan

Establishing a Health Power of Attorney: A Vital Decision

Understanding the Health and Welfare Lasting Power of Attorney

The Role of Health and Welfare LPA in Decision-Making

When you establish a Health and Welfare Lasting Power of Attorney (LPA), you are entrusting someone with the authority to make significant decisions regarding your health and personal welfare in the event that you lose the capacity to do so yourself. This person, or 'attorney', will have the power to make choices about your medical treatment, where you live, and how you are cared for.

The process of setting up LPAs is not to be taken lightly. It involves choosing reliable attorneys, deciding on the type of LPA, completing the necessary forms, and registering with the Office of the Public Guardian. It's crucial to understand the differences between a Health & Welfare LPA and a Property & Finance LPA, as they serve distinct purposes: one manages your medical care and personal welfare, while the other oversees your finances.

Remember, a Health and Welfare LPA cannot be used until you have lost the capacity to make your own decisions, unlike a Property and Financial LPA, which can be used as soon as it is registered. This distinction ensures that your autonomy is respected for as long as possible.

Life-Sustaining Treatment: Authority and Restrictions

When it comes to life-sustaining treatment, the authority you grant to your attorneys under a Health and Welfare Lasting Power of Attorney (LPA) is a profound decision. You have the choice to either empower your attorneys to make decisions about such treatments or to leave these decisions to medical professionals. Most individuals prefer to entrust their attorneys with this responsibility, as they are guided by medical expertise and personal knowledge of your wishes.

  • If you grant authority to your attorneys, they will decide whether to continue or discontinue treatment.

  • Without this authority, medical professionals will make the call, potentially without the personal insight your attorneys may offer.

Remember, while your attorneys can express preferences and collect prescriptions, they cannot refuse treatment on your behalf; this remains the domain of healthcare providers. However, specifying your treatment preferences in the LPA can guide your attorneys in discussions with medical professionals, ensuring your wishes are taken into account.

The Importance of Having Both Financial and Health LPAs

When considering your future, it's essential to prepare for the unexpected. Having both a Financial and a Health and Welfare Lasting Power of Attorney (LPA) ensures comprehensive protection of your interests. While a Financial LPA allows your chosen attorneys to manage your finances immediately upon registration, a Health and Welfare LPA becomes active only when you're unable to make decisions for yourself.

Here's why it's crucial to have both types of LPAs:

  • Financial LPA: Grants authority over financial affairs, including property, bills, and investments.

  • Health and Welfare LPA: Empowers attorneys to make decisions about your medical care, living arrangements, and daily routine.

Without both LPAs, you risk leaving critical decisions to chance or to individuals not of your choosing. It's not just about age or current health; accidents and illnesses can strike at any time, making it imperative to appoint trusted individuals now.

The Legal Steps to Establishing Mental Capacity

The Four Criteria for Mental Capacity

When considering the establishment of a Lasting Power of Attorney (LPA), it is essential to ensure that you have the mental capacity to make such a decision. Mental capacity is defined by your ability to understand, retain, use or weigh, and communicate information relevant to the decisions you are making.

  • You must understand the information relevant to the decision.

  • You must be able to retain that information long enough to make a decision.

  • You must be able to use or weigh that information as part of the process of making the decision.

  • You must be able to communicate your decision, whether by talking, using sign language, or any other means.

Assessing mental capacity is a critical step and may involve a professional such as a social worker or GP. If there is any doubt or dispute about your capacity, an independent assessment can be arranged to provide clarity.

The Implications of Losing Capacity Without an LPA

Losing the ability to make decisions for yourself without a Health and Welfare Lasting Power of Attorney (LPA) in place can have significant consequences. Without an LPA, you lose the control to choose who will make decisions for you if you become unable to do so. This means that critical choices about your life, such as where you live and the medical treatment you receive, could be made by someone you may not have selected.

Furthermore, while a Property and Financial LPA can be used as soon as it is registered, a Health and Welfare LPA cannot be activated until you have lost the capacity to make your own decisions. This distinction is crucial to understand as it underscores the importance of preparing in advance. Here's what you should consider:

  • The need to appoint someone you trust as your attorney.

  • The potential delay and expense of court proceedings if no LPA is in place.

  • The risk of your wishes not being followed if you haven't legally documented them.

Enduring vs Lasting Power of Attorney: What You Need to Know

When considering the future of your affairs, understanding the difference between an Enduring Power of Attorney (EPA) and a Lasting Power of Attorney (LPA) is essential. An EPA was the standard before October 1, 2007, and it allowed you to appoint attorneys to manage your financial affairs. However, if you wish to cover decisions about your health and welfare, you will need to set up an LPA, as EPAs do not extend to these areas.

If you have an existing EPA, it's still valid for financial decisions, but it's advisable to create an LPA for Health and Welfare to ensure comprehensive coverage. Should you decide to update to a financial LPA, your existing EPA must be revoked. Remember, mental capacity is crucial for setting up any Power of Attorney, and the process involves selecting attorneys and registering the document. A certificate provider will verify your understanding and consent during this process.

Choosing the right attorneys is a significant decision, as they will be acting on your behalf. It's crucial to select individuals who are trustworthy and will respect your wishes. The table below outlines the key differences between an EPA and an LPA:

By understanding these differences and taking the appropriate legal steps, you can ensure that your affairs will be managed according to your preferences, even if you're unable to make decisions yourself.

The Scope of Decisions Under a Health and Welfare LPA

Medical Treatment and Care Home Choices

When you establish a Health and Welfare Lasting Power of Attorney (LPA), you are entrusting someone with the authority to make significant decisions regarding your medical treatment and care home living arrangements. Your chosen attorneys will have the power to consult with healthcare professionals and make choices that align with your best interests and previously expressed wishes.

  • Your attorneys can discuss potential treatments and care options, ensuring that your preferences are considered.

  • They can also select or change care homes, based on your needs and desires.

  • In situations where you have strong feelings about certain medical procedures or living conditions, your attorneys can advocate on your behalf.

Remember, while your attorneys can express your preferences, medical professionals ultimately make treatment decisions. However, with a Health and Welfare LPA, your voice remains a central part of the decision-making process, even if you lose the capacity to communicate it directly.

Communicating with Healthcare Professionals

When you establish a Health and Welfare Lasting Power of Attorney (LPA), ensuring effective communication with healthcare professionals is paramount. This not only involves expressing your medical preferences but also making sure these preferences are clearly understood and accessible to those providing your care. Advance care planning is a key component of this communication, allowing you to document how you wish to be cared for as your illness progresses.

Here are some steps to improve communication:

  • Ensure your LPA includes clear instructions on how your care preferences should be communicated.

  • Regularly review and update your LPA to reflect any changes in your wishes.

  • Advocate for a 'joined up' medical system where your decisions are recorded and easily accessible across different healthcare settings.

  • Encourage meaningful education and support for clinicians to facilitate sensitive and informed discussions about your care.

The Limitations on Refusing Treatment

When you establish a Health and Welfare Lasting Power of Attorney (LPA), it's crucial to understand that while you can outline your treatment preferences, there are certain limitations. Your attorneys cannot refuse consent to life-sustaining treatments unless you have explicitly given them the authority to do so in your LPA. This is a significant distinction that ensures your well-being remains the priority in situations where you cannot make decisions yourself.

Your LPA can include specific guidance or instructions for your attorneys, which they can use to consult with medical professionals. However, the ultimate decision to continue or end life-sustaining treatment lies either with your attorneys, if you've granted them authority, or with the medical professionals if you haven't.

Here are some points to consider when granting authority in your LPA:

  • Whether to grant your attorneys the power to make decisions about life-sustaining treatment.

  • The importance of appointing trusted individuals who will be guided by medical professionals.

  • The need to ensure that your Advance Decision to Refuse Treatment is actively looked for and respected by clinicians.

The Role of Solicitors in Creating a Lasting Power of Attorney

Why Professional Advice is Crucial

When it comes to establishing your Health Power of Attorney, the complexity of legal documentation and the gravity of the decisions involved make professional advice not just beneficial, but essential. Solicitors specialise in navigating the intricacies of legal forms and can safeguard your interests by ensuring that your Health LPA accurately reflects your wishes and complies with current laws.

  • A solicitor can clarify the scope of decisions you can entrust to your attorney.

  • They can help integrate any advance directives you have into the LPA.

  • Their expertise ensures that your LPA is both valid and effective.

Remember, the role of a solicitor extends beyond mere form-filling. They offer a personalised service that considers your unique circumstances, providing honest and transparent advice. This includes being upfront about costs and working collaboratively with you to achieve the best possible outcome.

Incorporating Advance Directives into Your LPA

When planning for a time when you may not be able to express your healthcare preferences, incorporating advance directives into your Lasting Power of Attorney (LPA) is a proactive step. An advance directive specifies your wishes regarding medical treatment, ensuring that these are respected even if you lose the capacity to communicate them.

To integrate an advance directive into your LPA effectively, consider the following steps:

  • Reflect on your healthcare values and specific treatment preferences.

  • Discuss these preferences with your chosen attorney(s) to ensure they understand your wishes.

  • Consult with a solicitor to articulate these directives clearly within the LPA document.

  • Ensure that your advance directives are in compliance with legal standards and can be upheld if challenged.

Remember, an LPA is a powerful legal tool that allows someone you trust to make decisions on your behalf. Without it, you risk having these decisions made by individuals who may not be aware of your preferences or values. It's essential to seek professional advice to ensure that your LPA and advance directives are correctly established, reflecting your true intentions.

Ensuring Your Wishes Are Clearly Communicated

When it comes to your healthcare, ensuring your wishes are clearly communicated is paramount. The Health and Welfare Lasting Power of Attorney (LPA) serves as a critical tool in this process, allowing you to appoint a trusted individual to speak on your behalf. It's essential to have candid discussions with your chosen representative about your beliefs, values, and specific medical wishes. This ensures that, should you be unable to make decisions yourself, your appointed attorney can make choices that align with your values.

  • Discuss your healthcare preferences in detail with your attorney.

  • Document your wishes clearly in the LPA.

  • Regularly review and update your LPA as your circumstances or wishes change.

Many individuals express a sense of relief and empowerment after setting up their LPA. It's a process that not only secures your future healthcare but also fosters trust and partnership in making these vital decisions. Remember, it's not just about having the legal documents in place; it's about the assurance that your healthcare directives and Powers of Attorney will truly honour your medical wishes.

Financial Management and the Power of Attorney

Managing Finances: The Duties of Your Attorneys

When you appoint someone as your attorney for financial matters, you're entrusting them with significant responsibilities. Your attorneys can manage a wide range of financial tasks on your behalf, ensuring that your affairs are handled smoothly and according to your wishes. It's essential to choose individuals who are not only trustworthy but also capable of managing financial duties effectively.

Your attorneys' duties include, but are not limited to:

  • Selling or buying property

  • Opening and closing bank accounts

  • Ensuring that bills are paid

If you have multiple attorneys, they can act either 'jointly' or 'jointly and severally'. Acting jointly means they must make all decisions together, which can be impractical for minor tasks. 'Jointly and severally' allows them to act independently or together, providing more flexibility. Consider the practicality of your attorneys' locations and their ability to perform administrative tasks when making your choice.

Withdrawing Money and Other Financial Transactions

When you establish a Health and Welfare Lasting Power of Attorney (LPA), it's crucial to understand the extent of authority you're granting, especially in financial matters. Your attorneys will have the ability to manage your finances, which includes withdrawing money from your accounts and conducting transactions on your behalf. This power is not to be taken lightly, as it encompasses a range of activities from everyday banking to potentially selling property to fund care home fees.

  • Withdrawing cash from ATMs

  • Paying in cheques

  • Selling or buying property

  • Opening and closing bank accounts

  • Ensuring bills are paid

Remember, the decisions made by your attorneys should reflect your wishes and best interests. Establishing a power of attorney involves careful consideration, and it's advisable to seek professional advice to ensure that your financial wellbeing is safeguarded.

The Importance of Choosing Trusted Individuals as Attorneys

When it comes to appointing your attorneys for a Health and Welfare Lasting Power of Attorney (LPA), the cornerstone of your decision should be trust. Your attorneys will be making decisions that could have profound implications on your life and well-being, so it is essential that they are individuals who understand your values and wishes.

  • You should consider appointing a spouse, family member, friend, or a professional like a solicitor, who you have absolute confidence in.

  • It's wise to appoint substitute attorneys to step in if your primary choices are unable to act.

  • For a single attorney, a substitute is particularly important, but with multiple attorneys, you might not find it necessary.

Consider the practicality of your attorneys' locations. If they live close by, they will be more readily available to manage your needs. If you have a potential attorney who lives far away, such as an adult child abroad, pairing them with a local co-attorney could be a sensible arrangement.

Navigating the complexities of financial management can be daunting, especially when it involves legal instruments like the Power of Attorney. At East Sussex Wills, we specialise in providing expert guidance and services to ensure your financial affairs are managed with precision and care. Whether you're planning for the future or facing immediate needs, our team is ready to assist you with a personalised approach. Don't leave your financial security to chance; visit our website to learn more about our Power of Attorney services and how we can support you in safeguarding your assets. Take the first step towards peace of mind by scheduling an appointment with us today.

Conclusion

In sum, establishing a Health Power of Attorney is a crucial step in ensuring that your health and welfare decisions are in trusted hands should you lose the capacity to make them yourself. It empowers your chosen attorneys to act on your behalf, guided by your preferences and instructions, and in consultation with medical professionals. This legal document not only provides peace of mind but also preserves your autonomy by allowing you to dictate the terms of your future care. Whether it involves making choices about medical treatment, living arrangements, or even refusing certain procedures, a Health Power of Attorney ensures that your voice is heard when you might not be able to speak for yourself. It is a profound act of self-care and responsibility, one that should be considered with the same seriousness as any other significant life decision.

Frequently Asked Questions

What decisions can a Health and Welfare LPA make?

Health and Welfare LPA attorneys can make decisions regarding your health and care once you've lost capacity. This includes selecting medical treatment, choosing a care home, and communicating with doctors on your behalf.

Can a Lasting Power of Attorney refuse treatment?

Your attorneys do not have the power to refuse treatment on your behalf; these decisions are made by medical professionals. However, they can express preferences or instructions for your care.

Why is it recommended to have both a Financial and a Health and Welfare LPA?

Having both types of LPA ensures that trusted individuals can make decisions about both your financial affairs and your health and welfare when you're unable to do so yourself.

What are the four criteria for establishing mental capacity?

The four criteria are: understanding relevant information, retaining that information, using or weighing that information to make a decision, and communicating the decision.

Can I withdraw money if I have a Power of Attorney?

Under a Property & Financial Power of Attorney, your attorneys can manage your finances, including withdrawing money. They must always act in your best interests.

Why use a solicitor for creating a Lasting Power of Attorney?

A solicitor can ensure that your LPA accurately reflects your wishes, incorporates any advance directives, and that your intentions are clearly communicated and legally sound.

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