Powers of Attorney
Advance care planning - Lasting Powers of Attorney, Enduring Powers of Attorney, Advance Decisions, Advance Statements
For many people with progressive conditions such as dementia, there will come a time where you are not able to make decisions when they need to be made. We all have the right to make medical decisions about our medical treatment and to refuse treatment on a temporary or permanent basis.
You can plan ahead to ensure that your wishes and instructions are followed at a time when you lack mental capacity, and this can be through Advance Statements, Living Wills (“Advance Decisions”), but most commonly through a Lasting Power of Attorney.
Lasting Powers of Attorney (“LPAs”)
A Lasting Power of Attorney (“LPA”) is a legally binding document that allows you (“the donor”) to appoint trusted person(s) (“attorneys”) to act on your behalf when you are unable to do so. It provides a solution to the practical issues that arise when you are unable to make decisions yourself and gives you more control over what happens to your affairs at a time when you lack mental capacity.
In order to create an LPA you will need to be over 18 and have mental capacity. There are two different types of LPAs, which can be created at any time. Firstly, a “Property and Financial Affairs” power allows your attorney to deal with your bank accounts, to pay the bills, and to buy and sell your house. Secondly, a “Heath and Welfare” power allows your attorney to make decisions on medical treatment including life-sustaining treatment, where you should live and your daily routine. You can choose to make one type or both.
Before an LPA can be used it must be registered by the Office of the Public Guardian (“OPG”), and a fee paid which is currently £82 for each type, although you may be eligible for a fee reduction if your financial circumstances permit. The registration process takes up to 8-10 weeks and so we advise that the application is made as soon as possible.
Once the LPA has been registered, the attorney can start to act for you under your direction whilst you still have the capacity, or make decisions in your best interests when you lack mental capacity. The “Health and Welfare” power can only be activated in situations where you have lost capacity. You can cancel your LPA at any time but you must have the mental capacity to do so.
Enduring Powers of Attorney (“EPAs”)
An Enduring Power of Attorney (“EPA”) is an old-style form which has been largely replaced by LPAs.
An EPA is a legally binding document that appoints an attorney to help manage your property, money and financial affairs when you are unable to make a decision. It is limited only to your financial affairs and so it is not a document which covers your health and welfare affairs.
Once an EPA has been signed and completed it cannot be subsequently amended, but you can cancel it and replace it by making an LPA.
If the person who made the EPA starts to lose capacity, the appointed attorney(s) must register the EPA. This will involve notifying the person affected, their family members and other attorneys that you intend to register the EPA.
Advance Decision or Living Wills
A Living Will is often known as an “Advanced Decision” and is a legally binding document which a healthcare professional, such as a doctor, must take into account when making decisions about your care and treatment. It is designed to allow you to set out specific treatments that you do not wish to receive in certain circumstances where you are incapacitated, and so it is limited to refusal of medical treatment only. However, you cannot reject treatment designed to make you comfortable.
It is important that an Advance Decision is drafted carefully so that it is valid. The wording has to be specific and relevant to the medical circumstances. It will be invalid if you withdraw the document, so long as you have the mental capacity to do so, or where you have created an LPA for your health and welfare after the Advance Decision, which gives the attorney power to make decisions about life-sustaining treatment.
Advance Decisions can be made at any time but at a time where you were capable of making decisions and should be put in place where you feel very strongly about refusing life-sustaining treatment.
It is important that you discuss such a document with your GP and review your Advanced Decision regularly to ensure that it reflects your current wishes and views.
An Advance Statement is designed to set out in more general terms your wishes and views about your care preferences in the event you lose the capacity to make your own decisions and is not just limited to refusing specific medical treatment.
It is not a legally binding document like an LPA, EPA or Advance Decision, and so doctors are not obliged to follow it. However, it is a useful form of guidance to your loved ones that sets out what care preference you want in the future – where you should live, what dietary requirements you have, and what end of life care you should receive.
We are here to help
Watkins Solicitors are here to advise and help you to prepare these important documents to cater towards your individual circumstances. For further information about making an LPA, an Advance Decision, or registering an EPA please contact the team on 0117 9390 350 or email Lisa Morgan in the first instance: email@example.com.
If you are needing assistance for someone who does not have in place an Advance Decision, EPA, or LPA and no longer has mental capacity, we can help you in applying to the Court Of Protection for a Deputyship Order if appropriate. Please click here for our Court of Protection services, or contact Lisa Morgan on 01179 390 350 or email firstname.lastname@example.org.
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