Planning for the future is not limited to financial arrangements. Equally important is ensuring that trusted individuals can make decisions about your health and personal welfare if you lose the capacity to do so yourself. A Health and Welfare Lasting Power of Attorney (“LPA”) is a key legal instrument that enables this.
This article provides an overview of Health and Welfare LPAs, their scope, and why they form an essential part of comprehensive estate and lifetime planning.
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What is a Health and Welfare LPA?
A Health and Welfare LPA is a legal document under which an individual (the “donor”) appoints one or more persons (the “attorneys”) to make decisions on their behalf concerning personal welfare.
Crucially, such an LPA only takes effect if the donor loses mental capacity to make the relevant decision themselves.
This distinguishes it from a Property and Financial Affairs LPA, which may be used (with consent) while the donor still has capacity.
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The Legal Framework
Health and Welfare LPAs are governed by the Mental Capacity Act 2005, which sets out:
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The principles of decision-making on behalf of those lacking capacity
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The requirement to act in the donor’s best interests
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The importance of considering the donor’s past and present wishes, feelings, and beliefs
Attorneys must comply with these statutory duties at all times.
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Scope of Decisions Covered
A Health and Welfare LPA can confer wide-ranging authority, including decisions relating to:
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Medical treatment and care, including consenting to or refusing treatment
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Living arrangements, such as moving into residential care
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Daily care, including diet, dress, and routine
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Social and leisure activities.
Life-Sustaining Treatment
The donor may also choose whether to grant attorneys the authority to make decisions concerning life-sustaining treatment.
This is a significant and sensitive decision. If authority is granted:
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Attorneys may consent to or refuse treatment necessary to keep the donor alive
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Their decisions must still be made strictly in the donor’s best interests.
If no such authority is given, decisions will usually be made by medical professionals in consultation with family members.
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When Does the LPA Take Effect?
A Health and Welfare LPA can only be used:
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After registration with the Office of the Public Guardian (OPG), and
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When the donor lacks mental capacity in relation to the specific decision.
Capacity is both decision-specific and time-specific. A person may lack capacity in one area but retain it in others.
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Best Interests and Decision-Making
Attorneys must follow the statutory best interests test, which requires them to:
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Consider the donor’s known wishes, beliefs, and values
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Consult with relevant third parties (such as family members or healthcare professionals)
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Choose the least restrictive option available.
Attorneys must not impose their own views in place of the donor’s.
Failure to comply can result in investigation by the OPG or intervention by the Court of Protection.
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Interaction with Advance Decisions
A Health and Welfare LPA may operate alongside an Advance Decision (often referred to as a “living will”).
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If an Advance Decision is made after the LPA and is valid, it may override the attorney’s authority in specific circumstances
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If made before the LPA, the LPA may take precedence if expressly stated.
Careful drafting is therefore essential to avoid conflict between documents.
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Choosing Attorneys
Selecting appropriate attorneys is critical.
Clients should consider:
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Trustworthiness and reliability
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Ability to make difficult decisions under pressure
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Understanding of the donor’s values and preferences
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Willingness to consult and work with others.
It is often advisable to appoint more than one attorney, either:
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Jointly (requiring all to act together), or
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Jointly and severally (allowing flexibility).
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Practical Considerations
LPA Registration
An LPA must be registered with the OPG before it can be used. Early registration is advisable to avoid delay when decisions are required urgently.
Safeguards
The LPA process includes safeguards, such as:
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Certification by an independent person confirming the donor understands the document and is not under undue influence
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The option to notify specified individuals when the LPA is registered.
Record Keeping
Attorneys should maintain clear records of decisions made and the reasoning behind them, particularly where decisions involve significant medical treatment.
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Why is a Health and Welfare LPA Important?
Without a valid LPA:
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Family members do not automatically have legal authority to make decisions
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Disputes may arise between relatives and healthcare providers
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Applications to the Court of Protection may be required, which can be costly and time-consuming.
A Health and Welfare LPA provides clarity, reduces uncertainty, and ensures that decisions are made by those chosen by the donor.
Conclusion
A Health and Welfare Lasting Power of Attorney is a vital component of modern legal planning. It ensures that, in the event of incapacity, decisions about medical care, living arrangements, and personal welfare are entrusted to chosen individuals who understand the donor’s wishes and values.
Given the significance of the powers granted, clients should seek professional advice to ensure that LPAs are properly prepared, reflect their intentions, and integrate effectively with their wider estate planning arrangements.
Contact our award-winning team based in Leicester and Market Harborough today for tailored probate advice, support and peace of mind. Contact Us
Other Articles – see also “What Lasting Powers of Attorney Can’t Be Used For.”
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