It is a common misconception that your next of kin can make certain decisions for you if you are not able to, especially in respect of your health and wellbeing.
The reality is that you must formally give the power to another person to make decisions for you, even if that person is your spouse or civil partner.
Historically, these powers were granted in an Enduring Power of Attorney (EPA) and these can still be valid today, however more recently, a Lasting Power of Attorney (LPA) is used and this is what we discuss here.
There are two types of LPAs. One will deal with finances and property and the other deals with health and welfare. For finances and property, if elected to do so, this can be used even if you have mental capacity. This is often useful for someone who is physically unable to get to the bank or sign documents for the sale of their property etc.
For health and welfare, this can only be used when someone has lost capacity to make decisions for themselves. This will deal with where someone lives, what they eat, how they are looked after and can also give permission to someone to make life sustaining decisions - this is optional.
It is important to know what someone can do for another person either with or without a LPA whether you are the donor (the person who needs help), the attorney (the person who can make decisions) or the third party who needs to rely on the LPA.
What should you consider when you make an LPA?
- Who do you want to make decisions for you?
- Should they be able to make decisions on property and finances even if you have mental capacity?
- Do you have specific requirements they MUST or SHOULD take into consideration?
- Do you want them to be able to make decisions on life sustaining treatment?
What should you consider if relying on an LPA?
If someone (other than the person whose decision it is) is asking you to do something, what should you look out for?
- Is this a decision they can make for a loved one or friend?
- Could the person make the decision for themselves?
- If not, should there be a formal LPA in place and is there one? Is it registered?
- Who has the power to make the decision? If there is more than one person named, do they have to make
- decisions together or can one or other of them do so?
- Are there any restrictions meaning they cannot make the decision even if there is an LPA?
What can be done if there is not an LPA?
If someone has lost their ability to make their own decisions and they have not made an LPA, all is not lost. An application can be made to the Court of Protection for either a one off decision to be made or, more likely, to grant someone the power to make ongoing decisions. This can be costly and take time therefore it is advisable that, before they get to this stage, they consider making LPAs just in case.