If you’re reading this, there’s a good chance you’ve already taken steps to get your affairs in order. You may have written a will, or at least started thinking about what you’d like to happen after you’re gone.
But what about the choices that may need to be made while you’re still alive, especially if you’re not in a position to make your own decisions?
It’s not an easy thought. Planning ahead for the possibility of losing mental capacity, whether through illness, injury, or age, is daunting. But it’s one of the most thoughtful things you can do for yourself and the people who care about you.
This is where a Health and Welfare Lasting Powers of Attorney (LPA) comes in. It’s there to protect your voice and carry out your wishes regarding your healthcare if you’re no longer able to speak for yourself. In this guide, we’ll take a look at what it covers and how to go about writing one.
For friendly and compassionate advice on creating a Lasting Power of Attorney, talk to an expert at MW Legal.
What is a health and welfare lasting power of attorney?
A Lasting Power of Attorney (LPA) is a legal document allowing someone you trust to make decisions on your behalf, should you lose mental capacity. This person becomes your “appointed attorney”, and is typically a family member, but can be anyone you know and trust enough to act in your best interests.
There are two types of LPA:
- Property and Financial Affairs LPA: which gives your appointed attorney the authority to manage your financial matters, property and assets
- Health and Welfare LPA: which allows your appointed attorney to make decisions on your medical care and personal welfare, including pain management and life-sustaining treatment.
How does an LPA differ from a Living Will?
A Living Will (formally known as an Advance Decision) is a way of documenting your preferences about future medical treatment, should there come a time when you lack mental capacity.
A Living Will allows you to refuse life-sustaining treatment in certain circumstances and opt out of specified medical procedures and treatment. While you don’t need a solicitor to produce it (it is typically drawn up by the individual with their doctor), it is a legally binding document if done correctly.
The fundamental difference between a Living Will and a Lasting Power of Attorney is that the former documents your wishes, whereas an LPA gives someone you trust the right to make decisions on your behalf.
| Category | Living Will (Advance Decision) | Health and Welfare LPA |
|---|---|---|
| Purpose | Lets you refuse specific medical treatments in advance. | Gives a trusted attorney(s) legal authority to make a wide range of health and care decisions on your behalf. |
| Scope | Applies only to medical treatment. Doesn’t include financial decisions. | Covers medical treatment, pain management, personal welfare, living arrangements, and (if authorised) life-saving treatment. Combined with a Financial Affairs LPA, it gives your attorney(s) the right to make decisions about both your finances and health. |
| Representation | Does not appoint someone to act for you. | Legally appoints a person you trust to speak and decide for you. |
| Validity | Must be clear, specific, signed, and witnessed. | Must be registered with the Office of the Public Guardian before use. |
If you have both legal documents in place, it’s essential that they don’t conflict. That’s why it’s best to get professional advice from a professional such as an experienced will writer.
Why having A Health and Welfare Lasting Power of Attorney (LPA) matters
Without a health and welfare power of attorney, decisions about where you live, the care you receive, and the treatment you undergo will be at the behest of healthcare professionals. While they will certainly act with your best interests at heart, they might not know you personally. This might lead to friction between your family and your doctors if they don’t feel the treatment is what you would have wanted.
Also, without an LPA, your family doesn’t have an automatic say on your living arrangements, should the time come for you to move to a care home, especially if it is funded by a local authority. While healthcare professionals and social services usually work with families to make arrangements, the ultimate decision lies with them. If the family disagrees with the decisions, they may need to file a formal application to the Court of Protection, which can be a long and upsetting process.
Having an LPA in place avoids this uncertainty by giving your chosen welfare attorney(s) clear authority to make those decisions on your behalf.
How to set up a Health and Welfare LPA
Setting up a Health and Welfare LPA is a straightforward process, but it’s important to get it right. Working with a trusted professional will writer like MW Legal Services to create and register your document to ensure it is legally binding.
Here is our process:
- Choose your attorneys – Pick people you trust and know your personal preferences. Agree how they’ll decide (jointly or jointly and severally), and talk through your wishes before you start the forms.
- Initial consultation – We’ll discuss your needs via email, over the phone, or during a home visit.
- Drafting the LPA – We’ll draft the legal documents, ensuring that your wishes are clearly stated.
- Choose a Certificate Provider – If we meet face-to-face, MW Legal can act as your Certificate Provider, i.e., we can confirm that you have the mental capacity to make an LPA. If not, you must nominate a person who is either qualified to sign the certificate or ask someone who has known you for more than 2 years (but not a family member).
- Signing and witnessing – You and your attorney(s) must sign a paper copy of the agreement in the presence of witnesses.
- Registering the LPA – We will submit your LPA to the Office of the Public Guardian for registration – your LPA must be registered to be valid.
When is the best time to create an LPA?
The best time to set up a Health and Welfare LPA is now, while you are fit, well, and able to make your own decisions. Having one in place early can give you peace of mind, knowing that if the unexpected happens, your future health and care decisions will be in the hands of someone you trust.
Produce a Health and Welfare LPA with MW Legal Services
If you’re ready to take the next step, MW Legal Services can help you understand your options and create a financial or health LPA that truly reflects your wishes. Contact us today for a friendly chat.
Frequently asked questions about health and welfare lasting power of attorney’s
Can family members automatically make decisions on my behalf?
Your family members don’t automatically have the legal right to make decisions about your health or care if you lose mental capacity. Without a Health and Welfare LPA in place, doctors and social care professionals will make decisions based on what they believe is in your best interests. While they may consult your family, your relatives won’t have the final say. An LPA ensures the person you choose has the authority to speak and decide for you.
Does a Health and Welfare LPA include decisions on life-sustaining medical treatment?
It can, but only if you choose to give your attorney that authority when setting up the LPA. The form includes a specific section where you decide whether your attorney should have the power to make decisions about treatments such as resuscitation or ventilation. If you grant this authority, your attorney can make those choices on your behalf if you lose capacity so it’s best to talk to your chosen Attorneys about your wishes in that respect. If you don’t, those decisions will remain with your doctors.
Can multiple family members be your LPA?
You can appoint more than one attorney, and many people choose to name multiple family members. You’ll also decide how they make decisions, either jointly (they must agree together every time) or jointly and severally (they can act either together or independently). This flexibility allows you to involve the people you trust most while ensuring practical decision-making.
