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Understanding Lasting Power of Attorney (LPA): A Comprehensive Guide

by Ridley&Hall in Powers of Attorney, Yasmin Walker posted February 5, 2024.
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Most people are familiar with the concept of the Property and Financial Lasting Power of Attorney (LPA), a legal document granting authority to make decisions on behalf of an individual concerning their finances and property. However, there exists a lesser-known yet equally vital counterpart – the Health and Welfare LPA. This document gives designated individuals, referred to as “attorneys,” the ability to make decisions regarding an individual’s health and welfare when the individual lacks capacity.

Distinct Documents: Property and Finances LPA vs. Health and Welfare LPA

The Property and Finances LPA and the Health and Welfare LPA are two separate and distinct documents. You can name the same people as your attorneys for the 2 types of LPA but you will need to have both types of LPA for decisions to be made for your property and finances as well as your health and welfare

Differences in Attorney Authority

An attorney can only act for you in your health and welfare LPA once you lack the capacity to make your own decisions, however in relation to property and financial matters an attorney can act for you both while you still have capacity and also once you have lost capacity. A property and financial affairs attorney cannot make decisions about your health and welfare (unless they were your attorney for both types of LPA) so, they would not be able to choose the care home you reside in but would be able to arrange for payment of the care home fees.

Misconceptions about “Do Not Resuscitate” Forms

Often, people think that if they have signed a “Do Not Resuscitate” form that this negates the need for a Health and Welfare LPA. But as considered above, the document relates to much more than this type of situation and allows flexibility for your attorneys to make decisions on your behalf in relation to a wide range of personal matters when you are not in a position to do so yourself.

Importance of Health and Welfare LPA

A Health and Welfare LPA allows you to plan for the future and appoints someone that you trust to make decisions for you, if you lose the capacity to make decisions for yourself (for example through dementia or an unexpected injury). Once the Health and Welfare LPA is registered your attorney can act immediately on your welfare decisions, should you lose capacity.  Whilst you have capacity to make your own decisions you will be able to continue to do so. Without this type of LPA if you lose capacity you will no longer be able to decide who makes decisions for you. This could mean that there will be no one that you have chosen in advance that has the right to make decisions on your behalf in relation to your health and welfare. In this situation it will usually be the doctors and the local authority (via a social worker) that will make the decisions on your behalf if you have not previously appointed anyone to do so. Your loved ones and the people you trust the most will have no control over the decisions made on your behalf.  The only option open to them would be to make a Deputyship Application to the Court of Protection if they want to make decisions on your behalf or challenge a decision that somebody else had made for you, which can be a time consuming and expensive process. This is why it is so important to plan ahead and make a health and welfare LPA. It is also worth noting that the Court rarely grants the power to family under a deputyship application for health and welfare matters so getting this type of LPA in place is crucial to guarantee that your loved ones are the ones making decisions for you if you no longer can.

Encouraging both LPAs Creation

We would encourage you to make both types of LPA as it will ensure that your attorneys can then make decisions for you accordingly across all aspects of your life.

Creating a Health and Welfare LPA: Eligibility and Process

To make a Health and Welfare LPA you must be aged 18 or above and have the capacity to make the same decisions that you would want to authorise another person to make for you.

Upcoming Changes in the Lasting Power of Attorney Process

The process for creating a Lasting Power of Attorney is due to change towards the end of 2024 as the new Powers of Attorney Act 2023 is due to come into effect which is set to overhaul the current procedure. We do not know yet what the process will look like and what the timescales for this will be so would urge anyone thinking about making a Lasting Power of Attorney to make an appointment with us within the next few months if they would like their LPA to be created under the current regulations which we can thoroughly advise on.

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Yasmin Walker – Solicitor

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