What this post is about
In our last post we talked about Advanced Decisions. These are documents that you can make now, to outline treatment that you do not want in the future, if there comes a time when you are mentally incapable of making such decisions.
In this post we are going to talk about Lasting Power of Attorney (LPA), for health and welfare. If the time comes when you are no longer able to make your own health and welfare decisions, having set up an LPA for Health and Welfare can make life easier. An LPA for health and welfare is different to an Advance Decision. Under an LPA you appoint others, whom you trust, to make treatment and other welfare decisions for you, when you can’t. Under an Advance Decision, you yourself make a treatment decision now, to apply in the future.
This post sets out a guide to help you take steps to ensure that your wishes are followed if you are no longer able to make your own health and welfare decisions. We hope you find the information in this post helps you to decide what is right for you.
This post applies to the law in England and Wales only. There are different rules in Scotland and Ireland.
As with our last post, you will see the term ‘mental capacity’ throughout this article. Just so you understand, having mental capacity means you can make your own decisions and understand the implications of them.
No one can make an LPA unless they have mental capacity to do so. For this reason, it is important that you consider making an LPA whilst you are well, otherwise it can be too late.
If there comes a time when you cannot make a health and welfare decision because you have lost mental capacity, and you haven’t created an LPA, the Court of Protection may need to become involved. This can be long winded and expensive, so it is far better for you to choose someone you trust and appoint them in an LPA to deal with the things you choose.
The different types of LPA
There are two types of LPA, one for health and welfare, and one for financial decisions. In this post we are focusing on LPA for health and welfare.
Please note that an LPA for health and welfare can only be used if it has been registered with the Court, (called the Office of the Public Guardian), and you have lost mental capacity.
Decisions that can be made under an LPA for health and welfare
If you make an LPA for health and welfare, and appoint people to act for you, (attorneys), those attorneys can make decisions about things like:
- where you should live
- your medical care
- what you should eat
- who you should have contact with
- what kind of social activities you should take part in
- You can also give your attorneys permission to make decisions about life- sustaining treatment. Life sustaining treatment is any treatment needed to keep you alive and includes mechanical ventilation, antibiotics and CPR
Good to know
- You can appoint 1 Attorney or a maximum of 4. If you have more than 1 Attorney you must decide how they should act, i.e. jointly or jointly and severally. The latter is more flexible, but it’s your choice
- You can pick replacement Attorney’s to take over if your first named Attorney(s) become unable to act
- Your Attorney can only use the LPA if it has been registered with the Office of the Public Guardian and you no longer have mental capacity. Whilst you have mental capacity, no one can make health and welfare decisions for you.
- If you lose mental capacity and do not have an LPA in place, any decisions about your healthcare will be made by doctors. They will consult your family, where practical, but the final decision lies with them. This can lead to disagreements between your relatives and the doctors, especially if you have strong wishes about certain treatments, and sometimes it can mean the Court of Protection needs to become involved.
- No one has the right to automatically take control of your health, welfare, and care (not even your spouse). They need your authority. An LPA is therefore a way of giving someone you trust the legal authority to make health and welfare decisions for you, if you cannot make them yourself
- You can include restrictions or instructions in the LPA. These are things your Attorney must do or is not allowed to do by law. Because of the legal status of instructions and restrictions they have to meet certain requirements, so you need to be careful if you include them
- You can include guidance in the LPA. This is not legally binding but helps your Attorney know what you want when they are making decisions for you. Guidance is helpful as it lets all those involved in your care, know how you feel about certain things. We talk more about guidance below
- You can make an LPA online if you feel capable to do so. You will need a certificate provider to sign that you have mental capacity. The certificate provider must either be a professional person or have known you for 2 or more years. They cannot be named as an Attorney in your LPA. We have included a link to the online LPA service at the end of this post.
Guidance – why it’s important
Putting guidance in your LPA is helpful as it lets all those involved in your care, know how you feel about certain things. This is especially important if you have strong wishes regarding vaccines, medication, blood products and certain medical treatment.
In the last few months there have been several cases where an Attorney has refused a Covid vaccine for the person they are acting for, only to be overruled by the Court of Protection, that it is in the best interests of the person concerned to have the vaccine.
The cases highlight that the decision to vaccinate was reached by the judge in question, because there was no guidance in the LPA about this topic, and the person concerned had received a flu, or other vaccine, in the past.
For this reason we encourage people who do not wish to have a Covid vaccine, (or any future vaccine at all), to state this preference in the guidance section of their LPA.
As guidance is not legally binding it is important that you do not use words such as “must” and “should” when completing this section of your LPA.
We have set out below some suggested guidance that you can use in your LPA if you wish. However, check to make sure the guidance is right for you. For instance, experimental medical treatment may include drugs such as Ivermectin, that could be helpful to you.
“I would prefer not to receive a Covid 19 vaccine despite the fact that I have had flu vaccines in the past. I understand this may be deemed detrimental to my health”
“I prefer not to receive the flu vaccine even though I have had it in the past, and I understand that this may be deemed detrimental to my health”
“It is my wish that I do not receive any further vaccines, even though I have had various vaccines in the past, I understand this may be deemed detrimental to my health”
“It is my wish that I do not receive any vaccine whatsoever. I have not had a vaccine for the last [10,20,30] years”
“I am against all experimental medical treatments and as such I would prefer not to have any such treatment, even if this is deemed detrimental to my health”
“It is my wish that I am not placed on mechanical ventilation for any illness I may contract, even if this means my death will be hastened”
“I prefer not to receive any blood donation or transfusion from a person who has received the Covid 19 vaccination, and I wish my Attorney’s to take all reasonable steps to ascertain whether any blood I am to receive has come from such a person”
“I prefer not to receive any blood donation, transfusion or related blood products, such as plasma and platelets, and understand this may hasten my death”
“I would prefer not to be prescribed the drug midazolam”
“It is my wish that I do not receive an organ donation from a person who has received a Covid 19 vaccine, and I wish my Attorney’s to take all reasonable steps to ascertain whether any organ I am to receive has come from such a person”
“It is my wish that I do not receive an organ donation, and I understand this may hasten my death”
“I would prefer to die at home rather than in a hospital setting and it is my wish that my Attorney’s take all reasonable steps to facilitate this”
“If I require care in the future I would prefer for this to take place in my own home, rather than a residential or care home setting, and I wish my Attorney’s to take all practical steps to facilitate this”
Life sustaining treatment
You must indicate in your LPA whether or not you give your Attorney the power to consent to or refuse life sustaining treatment for you.
If you trust your Attorney and know they will follow your wishes, and in addition you have strong views about medical treatments and interventions, such as those mentioned in the guidance section above, it is probably best that you grant your Attorney this power. However, you do not have to, in which case a doctor will decide what treatment you should receive.
Other important information
- You can cancel your LPA at any time as long as you have mental capacity
- Your Attorney must always act in your best interests when making decisions for you
- Your Attorney cannot use your LPA to change your Will
A local Healthwatch provides information, advice and support to users of health services in your area. It can also put you in contact with your local NHS Complaints Advocacy service. To find your local Healthwatch contact: Tel: 03000 683 000 www.healthwatch.co.uk
Office of the Public Guardian
For information about making a LPA or applying to the Court of Protection. Tel: 0300 456 0300
Solicitors for the Elderly
Independent national organisation of solicitors that specialise in a wide range of legal issues affecting older people. Contact them for help in finding a solicitor. Tel: 0844 567 6173 www.sfe.legal/public
To make an LPA online visit https://www.gov.uk/power-of-attorney/make- lasting-power