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Health Lasting Power of Attorney

What is a Health Lasting Power Attorney and why have one? 

What problems can there be if there is more than one attorney?

What sort of things do I need to consider?    

When is the best time to make an LPA?

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Below is some information about lasting power of attorneys, why you may need one and how to decide what type of attorney(s) you would wish for.  You may, or may not, wish to read this.  What you do need to know, is that I can address it.  "What if" is always the question to ask your self.  For example, what if something happens to you and health or financial decisions have to be made?  Are you worried the choices you would make are not known or understood?  Are you going into hospital?  Perhaps you wish for temporary or permanent cover if you lose capacity?  So, really, you dont need to read all that stuff below if you dont want to.  You can simply contact me, we can discuss and put in place a solution to address your concerns as swiftly as you like.  At the end of day, these solutions are here to serve you and it is our intention to do just that.  Call me today.

​As you may expect, there are the short answers, and some long answers.  The aim here is to give you some understanding to aid you to make informed decisions. 

 

A health and welfare LPA gives your attorney the power to make decisions about your daily routine (washing, dressing, eating), medical care, moving into a care home and life-sustaining medical treatment. It can only be used if you're unable to make your own decisions.  Note : You do not have to give your attorney the power to make decisions about life sustaining treatment.  If you know how you feel about this, it may be best that this is done via an Advance Statement to make it legally binding and know that an attorney will follow your instructions.

 

Are my LPA instructions legally binding?

 

Using the correct wording can very important.  For example, “I wish to eat vegan food” is not the same as “My attorney must ensure I only eat vegan food”.  The first is a wish, the latter using the word “must” is an instruction and is legally binding.  Creating an Advance Care Plan with us that contains your specific care instructions to include diet and personal care and faith will aid a great deal.  Your attorney can be directed that in all matters they must refer to the Healthcare Plan to ensure your instructions and wishes are being carried out.

 

What happens if you don't have health power of attorney?

If you are unable to manage your affairs, for example due to a stroke or a debilitating illness, and you don't have a lasting power of attorney in place, your loved ones will have to apply to the courts to have someone appointed to manage your affairs, costing time and money.

 

Does the next of kin need medical power of attorney?

It's important to note from the start that, contrary to popular opinion, being next of kin does not legally entitle you to make health or financial decisions on behalf of your relative. In many instances, in order to represent your loved one, you will need a Lasting Power of Attorney in place.  Whoever holds a power of attorney will have legal authority over relatives.

 

What are the disadvantages of not having a power of attorney?

Looking after someone who has lost their mental capacity is hard enough, but if you are doing it without the benefit of a power of attorney, you are bound to find it even more difficult, as you don't have the legal authority to deal with their affairs properly.

 

Do siblings have to agree on power of attorney? 

This is a significant factor to take into account when appointing your attorney/s.  It is common for feelings to run high about people that care about you and can lead to deadlock situations.  You should consider all the options as to who might be best to be your attorney, for example, whether a separate person entirely who is given the instruction that they must consult with all the family members before making a decision.  There are a number of ways to look at it. 

 

Jointly: All attorneys must agree on every decision which is why it is sometimes advised to consider choosing just one attorney.

 

Jointly and Severally: Attorneys can act together or independently. If the LPA is structured "jointly," then all attorneys must agree on every decision, and if a disagreement occurs, the decision cannot be made until the disagreement is resolved.

 

Here is an example situation where three siblings and their mother were not in agreement as to whether a Health LPA should be set up to be jointly, or jointly and severally:

 

“We are creating a health LPA for my mother.  I am to be the primary attorney, but one sibling is against this, despite the fact our mother is for it.

 

One sibling and myself believe the three of us should come together to decide on our mother's care going forward. The other sibling thinks we should have a joint Health LPA because she doesn't trust us. If we have a 3 way joint Health LPA and have a disagreement about our mother's care, does the majority make the decision or would we have to go to court against our sibling.”

 

Under UK law, a joint Health LPA can be structured in one of two ways (as described above) :

Jointly: All attorneys must agree on every decision.  Jointly and Severally: Attorneys can act together or independently.

If the LPA is structured "jointly," then all attorneys must agree on every decision, and if a disagreement occurs, the decision cannot be made until the disagreement is resolved. This could potentially lead to deadlock situations where decisions are delayed. If a resolution cannot be reached, you may need to apply to the Court of Protection for guidance.

 

If the LPA is structured "jointly and severally," any attorney can make decisions on their own or with the others. This offers more flexibility but may also lead to conflicts if one sibling disagrees with the decision made by the others.

 

The situation already illustrates how difficult it can be to reach agreement even though the main consideration, care of the mother, is what is in everyone’s minds.

 

If possible, the mother and siblings should discuss whether the LPA should be "jointly" or "jointly and severally directly, together.  Consider the pros and cons of both options.  Put in Mediation Clauses: Consider including a mediation clause in the LPA, setting out a process for resolving disputes, perhaps through professional mediation. 

 

The overall factor here is that mother remains a central figure to the discussion and agreement.  She is showing she has capacity and the ability to make her own decisions and a solicitor acting for her must act entirely in her interests (and if there is any question a legal professional must adhere to the Golden Rule and ensure her capacity is verified by a medical professional) .  The siblings must avoid showing coercion.  So, it is important that the mother's wishes/directions are central to the process as it is she, as the donor, who is appointing the attorney.  The Certificate Provider should also be able to record that the mother was making her own independent decisions and had a full understanding of them.

 

It would seem important at this point, that the siblings get professional guidance.  It may be useful to consult with a legal professional to draft the LPA accurately (getting it wrong can be somewhat costly) and include any necessary clauses to handle potential disagreements.  In addition, the mother should sit and talk independently about her wishes with that legal professional.  This could be very important.

 

In the context of Tipi Wills and their mediation services, through their sister company Isle of Wight Mediation it may also be appropriate to consider the Empowered to Talk service to facilitate reaching agreement as to the way forward. 

 

It must also be noted that even after the LPA has been registered, your mother is entitled to change her mind and revoke any agreement made provided she has capacity to do so.  A legal professional should be consulted at such a time so that the correct procedures are followed and recorded.  If a person, the mother, is upset that her wishes are not being carried out as she intended, then the attorney/s can be in a serious breach of their legal duties and obligations to do what is best for the mother.  The mother’s solicitor also has an obligation to her client, (the mother), to do whatever is in her client’s best interests in the same way ( as the attorney).  As the mother still has capacity, the solicitor will advise the mother of the way forward, independent of the attorney/s, for example revoking and appointing someone else.  The appointment is not absolute. 

 

Open communication now and understanding each other's concerns can prevent future conflicts, especially as it is clear there is an inherit conflict already present.  Consider a method to facilitate that as outlined above, and clearly outline in the LPA how disagreements will be handled so that everyone knows what the way forward would be in any eventuality.

 

As to the answer to the question “When is the best time to consider doing an LPA?”  You may have realised that the best time is when you are still of strong and sound mind and able to make decisions and give directions for yourself. 

Written by Patricia Horwood  Sept 2024

SWEPP  SoM

Be in control.  Be Certain

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