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Health & Welfare Lasting Power of Attorney - Overlooked or Over-the-Top

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For those of you unfamiliar with Lasting Powers of Attorney they can be summarised as a legal document that allows you to appoint someone to make decisions on your behalf in the event that you are too unwell to make those decisions for yourself.

There are two different types of Lasting Power of Attorney, one covering your Property and Financial Affairs, and another that deals with your Health and Welfare. You can choose to have just one or both types.

Whilst the Property and Financial Affairs Lasting Power of Attorney is very popular, the Health and Welfare Power of Attorney is often dismissed or overlooked.

The benefits of a Property & Financial Affairs Lasting Power of Attorney are clear, in the event that your bills need to be paid the bank will recognise your attorneys as having legal authority to draw money from your account. Likewise, if your property needs to be sold, the Land Registry will recognise your attorney as being legally able to sell the property on your behalf. It would be almost impossible to administer a person’s property and finances without a Property & Financial Affairs Lasting Power of Attorney.

With the Health and Welfare Lasting Power of Attorney the position is not so clear cut

The most common examples given of the types of things that your attorneys would be able to do for you using the power of attorney are as follows:

  1. your daily routine (e.g. washing, dressing, eating)
  2. medical care
  3. moving into a care home
  4. life-sustaining treatment

The first question that springs to mind when considering the above is ‘who would make those decisions without the power of attorney?’

In most cases, without a Health & Welfare Lasting Power of Attorney the above decisions would be made by a variety of persons, namely social services, local authorities and health professionals. They may or may not consult with family members depending on circumstances at the time.

People often assume that a close family relative or ‘next of kin’ would automatically be entitled to have a say in the above decisions without the need to have recourse to a legal document.

Unfortunately this is not always the case.

Health workers and social services are automatically afforded decision making powers by statute which is why they are able to make decisions on behalf of a person on a day to day basis.

Family members have no statutory right to make decisions on behalf of a relative

For a family member, they have no such statutory rights and therefore without a Lasting Power of Attorney naming them they have no decision making status. That is not to say that their opinions will always be disregarded, but it does highlight that relatives certainly do not have any automatic right to make or be involved in decisions on behalf of a loved one.

The grey area over what family members may or may not be able to do without a Health & Welfare Lasting Power of Attorney often cause people to shy away from doing them on the basis that they may not be needed, or in the belief that they can manage without one.

Not only does the absence of the document mean that you may not benefit from your nearest and dearest having an impact on your health and care treatment, it can also cause your relatives a considerable amount of upset by not being able to have a say in these matters.

If anything, to be excluded or disregarded from decisions about a loved one’s health and welfare matters can be more distressing than to not be involved in financial decisions due to the personal nature of the types of decisions involved.

A Health & Welfare Lasting Power of Attorney gives your attorney status to be Involved in your Health & Welfare, however trivial or major the decision may be.

Just as with the Property & Financial Affairs Power of Attorney, most people hope that they never need to use the document, however, it is reassuring to know that it is there just in case.

Both types of Lasting Power of Attorney are about making choices. It allows the opportunity for you to decide who is to make decisions for you if you cannot and it seems a shame to overlook such an opportunity because people feel they can ‘get by’ without one. It may be the case that the Power of Attorney is never required but it can give you security of knowledge that if ever such decisions are necessary, those people you trust can be afforded a say on your behalf.

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