A Power of Attorney is a document that allows you to nominate another person to assist you in some capacity. It empowers that individual and gives them a legal standing in your stead.
In England there are three different types of Power of Attorney, General, Lasting for Finances and Lasting for Health and Welfare.
In a nutshell a General Power of Attorney is for people who retain mental capacity, meaning you still have your mental faculties, but are incapacitated through another means, such as going abroad or being in hospital for an extended period. The General Power of Attorney could empower another individual to manage your finances while you are unable, or to manage your business, it’s a very flexible document and can be drafted to cover most eventualities.
A Lasting Power of Attorney, either for Finances or Health and Welfare is to be used when you lose your mental capacity, either through dementia, accident or injury. It allows your nominated attorneys to manage your affairs for you when you are no longer capable of making decisions.
This article will focus on the Lasting Power for Health and Welfare.
In a Nutshell
This document is different to the financial Power, as it focuses on the wellbeing of the donor, the person who made the Power. There is a great deal of responsibility for the nominated attorney, so you must make sure that you nominate someone you trust and who is able to make these kinds of decisions on your behalf.
What Decisions can the Attorney Make
The nominated attorney will make very personal decisions regarding your care and wellbeing, including but not limited to: –
- Your daily routine, such as washing, dressing and eating
- Your medical care
- Where you might live if it becomes necessary for you to move out of your home
They will also be able to approach the person you have nominated to take care of your finances (unless they are the same person) and ask for funds to maintain or improve your current quality of life. They are permitted to spend money in this manner provided it is for your benefit. Examples of what they can purchase include but are not limited to: –
- New clothes for you
- Self-care for you, such as hairdressing, or spa treatments
- Decorating or improving your home or room in a care home
- Additional support, such as carers to help you improve your lifestyle and go out more, for example to visit friends or relatives or to go on holiday
Decisions Regarding Hospital Treatment
They might (it is up to you) also have power to make decisions regarding hospital treatment. This can include requesting certain treatments or refusing other treatments. However, not all attorneys will have this level of power, it is up to you, the donor, to state if you wish them to have the power to make these decisions.
You do not have to give your attorneys this level of responsibility, you could draft a living will that expresses your wishes as an alternative.
A Living Will
A Living Will is a legal statement from you, the donor, regarding which medical treatments you either want or don’t want.
Restrictions on What Attorneys Can and Cannot Do
Making a Lasting Power of Attorney for Health and Welfare can be a daunting experience, it can be worrying to give someone else a level of responsibility over your affairs.
However, you should be reassured that attorneys cannot simply take the power given to them and run with it, there are restrictions on what they can and cannot do. These restrictions come from two places, the Court of Protection and you.
The Court of Protection is in place to prevent attorneys taking advantage of vulnerable people. They regulate attorneys and act if one acts in such a way that it hurts the donor or is not in their best interest.
You have the power to restrict your attorneys through the Lasting Power of Attorney document. You can list the types of responsibility you want the attorneys to have or not have, as the case may be. For example, if you want your attorneys to be able to make decisions for you regarding clothing and day-to-day care but not on where you live, then you can list this on the document and the attorneys will have no say in where you live should you need to move out of your current home.
You can also provide guidance on how you want decisions on your behalf to be made. If you have nominated more than one attorney you can have them act jointly, where they all must agree or severally where they can make decisions individually. Or you can place restrictions stating that they can make decisions as individuals for somethings, but must all agree for others. An example being,
Bob and Margaret are Attorneys for their Mum Janet. Bob lives with Janet and makes many decisions such as what clothes Janet will wear and what they will eat that day. Bob is going away on a business trip for a couple of weeks and Janet needs to go into a hospital for respite care while Bob is away. Under the Power of Attorney that Janet set up Bob and Margaret must both agree which hospital would be best for Janet to stay in. Bob cannot make this decision alone.
Health and Welfare Powers are important and allow you to nominate people you trust to help take care of you should you ever need it. They are only used when mental capacity is lost and allow the attorneys to make decisions regarding the physical and mental wellbeing of the donor. There are many restrictions on how these attorneys can act, some put in place and enforced by the Court of Protection, others can be put in place by the Donor.