Lasting Power of Attorney for Health: The Conversation Families Avoid

Almost everybody assumes that if the worst happened, their husband, wife, partner or children would be able to make decisions on their behalf. It is one of the most widely held beliefs about English law, and it is wrong.

Being somebody's next of kin confers no legal authority to make decisions about their medical treatment or their care. Being married does not do it either. Without the right document in place, families can find themselves informed of decisions rather than making them, at exactly the moment when it matters most.

Two different documents, two different jobs.

A lasting power of attorney is a legal document appointing one or more people, called attorneys, to make decisions on your behalf if you become unable to make them yourself.

There are two types and they are entirely separate. A property and financial affairs LPA covers money, bills, bank accounts, benefits and property. A health and welfare LPA covers medical treatment, care arrangements, where you live and day-to-day matters such as diet and routine.

Many people make only the financial one, often at the same time as a will, and never make the health one. That is the more commonly missing piece and frequently the more distressing one to be without.

The health LPA only takes effect when capacity is lost.

This is an important distinction. A financial LPA can be used with your permission while you still have capacity, if that is what you choose.

A health and welfare LPA cannot. It only becomes operative when you lack the capacity to make the particular decision in question, and capacity is assessed decision by decision rather than as a general status. Someone may lack capacity to decide about complex surgery while retaining capacity to decide what to eat.

Until that point, you continue to make your own decisions, and your attorney has no say whatsoever.

Life-sustaining treatment is a specific choice.

The health LPA form asks you to decide explicitly whether your attorneys should have authority to give or refuse consent to life-sustaining treatment on your behalf.

You choose one option or the other, and it is worth thinking about carefully rather than ticking quickly. If you do not give them that authority, decisions about life-sustaining treatment will be made by the clinical team in your best interests, taking account of your known wishes.

Neither choice is right or wrong. What matters is that it reflects what you actually want, and that the people you appoint know it.

It has to be registered to work.

An LPA is not effective until it has been registered with the Office of the Public Guardian. Registration takes time, and a document sitting completed but unregistered in a drawer is of no use in an emergency.

You can make an LPA yourself using the official forms and online service, which is considerably cheaper than using a solicitor. A solicitor is worth considering where circumstances are complex, where family relationships are difficult, or where there is any prospect of the document being challenged.

There is a registration fee, with exemptions and reductions available for people on low incomes or certain benefits.

A certificate provider, who is someone independent, must confirm that you understand the document and are not under pressure.

Advance decisions are different again.

An advance decision to refuse treatment, sometimes called a living will, is a separate document in which you set out specific treatments you would refuse in specific circumstances.

If it is valid and applicable to the situation that arises, it is legally binding on clinicians. Where it refuses life-sustaining treatment it must be in writing, signed, witnessed and contain a specific statement that it applies even if life is at risk.

An advance statement, by contrast, records preferences and values rather than refusals. It is not legally binding but must be taken into account and is genuinely influential in best interests decisions.

These can sit alongside an LPA, and the interaction between them depends on which was made most recently and what authority the attorney was given, which is a good reason to review documents periodically.

If there is no LPA.

Where someone loses capacity without having made one, decisions about their treatment are made by clinicians in their best interests, consulting family and anyone else with an interest in their welfare.

Family views are taken seriously and clinicians will listen, but the decision is not theirs to make. Where there is serious disagreement, or where nobody is available to consult, an independent mental capacity advocate may be appointed, and in the most difficult cases the Court of Protection can be asked to decide.

Applying to the Court of Protection for a deputyship after the event is slower, considerably more expensive and more intrusive than making an LPA in advance, and health and welfare deputyships in particular are granted only rarely.

Choosing attorneys.

Choose people who will actually be willing and able to do it, who understand your values, and who can hold a difficult conversation with a doctor.

You can appoint more than one, either jointly, meaning they must all agree, or jointly and severally, meaning any of them can act alone. The second is usually more practical, though families with a history of conflict sometimes prefer the first.

Tell them you have done it, tell them where the document is, and tell them what you would want. A registered LPA held by someone who has no idea what you would have chosen is only half the job.

This article is general information and is not legal advice. Anyone with a complex situation should take proper advice, and free guidance is available from Age UK, Citizens Advice and the Office of the Public Guardian.

Share your thoughts.

Have you had this conversation with your family, or is it one that keeps getting postponed?