A Lasting power of attorney for Health and welfare (LPA) is a powerful legal document and giving others the power to make decisions for you can be daunting. But there are many ways to ensure that your wishes are respected. Here is a list of things to think about before you start.
When you (the 'donor') are no longer able to make a decision about your health and welfare, an attorney is a person who will make this decision for you.
Attorneys must be over 18 and be able to make decisions. Choose someone you know well and trust, like a spouse, partner, close friend or relative. Discuss it with them beforehand. A MyLawyer LPA allows you to choose up to six attorneys.
If choosing two or more attorneys, decide how they should make decisions. You have three options:
You can specify replacement attorneys who will act only if one of your original choices becomes unavailable. You don't have to, but in some cases it is sensible. For example, if you only choose one attorney, your LPA would end if something happened to them. Or, if you choose more than attorney and state that they must make decisions 'jointly', your LPA would end if something happened to one of them. In both cases, a replacement would allow the LPA to continue.
You may want to choose a replacement if you have chosen your spouse as an attorney. This is because if you were to divorce, they would be prevented from acting as your attorney, unless you say otherwise in the LPA. A MyLawyer LPA allows you to choose up to five replacements. If you choose more than one, think about whether you have any preferences about which ones will act, if needed.
Your attorneys will only have the power to make decisions about life-sustaining treatment if you expressly give it to them. 'Life-sustaining' means that a doctor must consider the treatment necessary to keep you alive. What treatment this is will depend on your situation.
If you don't want your attorneys to make these decisions, the doctor will make a decision based on what they consider to be in your best interests. If you have a valid Living Will or similar document, the doctor should follow it. Alternatively, if you do want your attorneys to decide, their decision will override any advance decision you have made (unless you state in the LPA that they must follow it).
You may want treatment in some cases, but not others. If this is the case, you can explain in the LPA the circumstances where you want to refuse treatment.
You can include instructions that force your attorneys to act in a certain way, or prevent them from making certain decisions. For example, you could say they must talk to a particular person before deciding where you live, or that they can only make decisions about your social care.
Any instruction must be followed by your attorneys, so make sure it's clear, practical and workable. If it isn't, it could cause problems. Regardless of whether or not you add instructions, the law prevents your attorneys from doing certain things - a list of these is provided in the MyLawyer LPA.
You may want to just give your attorneys more general guidance about your preferences instead. They will have to consider any guidance you give them, but won't have to follow it. For example, you might give guidance about where you want to live and preferences regarding activities.
You may want to discuss with your attorneys whether or not they will be paid. If not, they will still be able to recover expenses incurred whilst acting as your attorney (e.g. postage costs, telephone calls).
As a safeguard, you can choose people to be notified of any attempt to register your LPA. These people then have the chance to tell the Office of the Public Guardian of any concerns they might have (e.g. if they feel you were bullied into creating the LPA).
You don't have to name anyone, but if you do, you can name up to five people. Choose family, friends, or perhaps a health/social care worker who knows you well. Talk to these people first. You cannot choose one of your attorneys or replacements.
This person must complete a section of the LPA declaring, among other things, that you understand what you are doing and haven't been pressured or tricked into creating an LPA.
Pick either someone you have known personally for at least two years, or someone with the relevant professional skills and expertise (e.g. your doctor, solicitor, or an Independent Mental Capacity Advocate).
Talk to this person first. You cannot choose:
When you sign your LPA, you will need a witness. This witness can be anyone over 18 who has full mental capacity, unless they are one your attorneys or replacements.
Your attorneys and replacements will also each need witnesses when they sign. These witnesses can be anyone over 18 with full mental capacity, except you (the donor).