Lasting Power of Attorney for Health and Welfare
It's your life - make sure it's you who always decides
A Lasting Power of Attorney for Health and Welfare enables you to plan forward in case you ever lose the ability to think and speak up or think for yourself – i.e. in case you ever lose mental capacity.
This is a real risk for all of us. Dementia is affecting 1 in 12 people aged 65 and above. By the age of 80 it’s as much as 1 in 6. That’s without taking account of the risk of other serious conditions, such as stroke, brain haemorrhage, tumours and cancer, or the effect of a serious injury – for example, 5000 motorcyclists are seriously injured on the road every year, many suffering life-altering head injuries.
Unfortunately, if you ever were to lose metal capacity, and hadn’t already taken action to protect yourself, the big decisions about your life, such as what medical care you receive and where you live, would be taken by strangers, such as doctors and social workers “in your best interests”. Your spouse, partner, family and close friends have no automatic legal power to make decisions for you, or to consent or object to decisions on your behalf.
Fortunately, you can plan ahead to protect yourself by making a Lasting Power of Attorney for Health and Welfare.
This is a document that authorises the person or people of your choice – your Attorneys - to speak up for you, and make decisions on your behalf, if you ever lose mental capacity.
Appointing an Attorney
You can choose anyone to be your Attorney, provided that they are aged over 18 and have mental capacity themselves. You can appoint as many attorneys as you like, although for practical purposes it is best to stick to a maximum of about 4.
For Health and Welfare matters, most people appoint their attorneys from people closest to them. For example, you might choose your spouse, your adult children, your close friends, or your godchildren. The important thing is to choose people who know you well, whom you trust to make sure your wishes are respected.
You can be as specific or as general as you like in stating what decisions your attorneys can make for you, and how they must make decisions.
One thing you must specify, however, is whether your attorneys have decision-making power over life-sustaining treatment and end-of-life care. Many people choose to absolve their Attorneys from this onerous responsibility by setting out their wishes very clearly in an Advance Directive.
To create a Lasting Power of Attorney, you must make a signed declaration that you understand what you are doing, and that you are appointing your attorneys of your own free will. Your declaration must be witnessed.
Your chosen Attorneys must also sign a declaration, that they understand the responsibilities that come with being an Attorney, and that they will accept that responsibility for you if and when the time comes.
An independent person must certify that you know and understand what it means to create a power of attorney, and that you are doing so freely. That person, referred to as the Certificate Provider, must be a legally or medically qualified, or must have known you personally for at least two years.
Finally, another person who knows you well must be given a formal notification that you are creating and registering this document.
Once those formalities have been observed, your Lasting Power of Attorney must be registered with the Office of the Public Guardian. Only when it is registered will it be valid.
Respecting your Wishes
It’s important to bear in mind that a Lasting Power of Attorney for Health and Welfare, once registered, can only confer decision-making power on your chosen attorneys if you lose mental capacity.
If your Attorneys have to use the powers you have given to them, they can only do so if they follow a strict Code of Practice, which focuses on preserving your civil liberties as an adult as far as possible. A Lasting Power of Attorney for Health and Welfare is not a licence to interfere in your life. Your wishes and preferences must always be respected as far as possible.
Your attorneys can only get involved if they are sure you can’t manage on your own. Even then, they must try and help you come to your own decisions if possible. Only if you can’t make your own decisions, even with help, can they take over and make decisions for you. If they do have to take over, they must always opt for the least intrusive possible way of doing things.
As an added a safeguard for you, Attorneys’ activities are policed by the Office of the Public Guardian, which receives, and acts upon, any information about suspected wrongdoing by an Attorney.
Making a Lasting Power of Attorney for Health and Welfare costs £600 for a single person and £875 for a couple.
Making two Lasting Powers of Attorney – one for Health and Welfare and one for Property and Financial Affairs – costs £875 for a single person and £1350 for a couple.
The Office of the Public Guardian also levies a fee of £82.00 to register each Lasting Power of Attorney you make.
A Lasting Power of Attorney for Health and Welfare is included in our Budget Plus Estate Plan, our Intermediate Estate Plan and our Comprehensive Estate Plan.
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