The importance of an LPA for Health & Welfare was recently highlighted by the organisation 'Solicitors for the Elderly' that found that 99% of respondents were leaving decisions about health and welfare to chance and a further 41% admitted to having made no provision for later life including a Will, Pension Plan or LPAs.

But what is an LPA?

LPAs are legal documents under which you can nominate Attorneys who then have the legal authority to make decisions on your behalf in situations where you may have become unable to make such decisions for yourself.

There are two different types of LPA: Property & Financial Affairs and Health & Welfare. This article is focused on the later which due to recent changes in the practices of many Local Authorities and NHS Trusts are becoming increasingly important.

Will my doctor not just discuss things with my family anyway?

Whilst doctors must always act in what they consider to be the patient’s best interests, these actions may not always be in accordance with your wishes. For example, whilst most doctors will consult with a patient’s family if the patient lacks the capacity to make such decisions themselves, legally this is a relatively grey area. If there is no LPA for Health and Welfare and, the doctor decides that it is in your best interests to maintain your confidentiality, your family may not therefore be consulted regarding your care thus making an already distressing situation that much more difficult for them.

The sad case of Betty Figg:

Nothing highlights the importance of such documents as the case of 86-year-old dementia sufferer Betty Figg. Mrs Figg did not have an LPA for Health & Welfare and, after a stay in hospital, Adult Social Services became involved in her care and recommended that she be placed in a care home. Initially her family agreed with this however, after becoming concerned about the level of care her mother was receiving Mrs Figg’s daughter brought her mother to live with her. These actions then prompted Social Services to obtain a warrant to forcibly return Mrs Figg to the care home where she stayed for a further two months whilst her daughter attended a two day carer’s course and made renovations to her home in order to convince Social Services that the environment was suitable for her to care for her mother.

Whilst the case of Betty Figg is admittedly an extreme example, it is worth noting that this whole situation could have been avoided if a Health and Welfare LPA had been in place as, there would have been no need for the doctors to involve social services and the attorney (which can be a relative) would have been able to make the decisions instead.

What else can my Health and Welfare LPA be used for?

Health and Welfare LPAs are more often used to assist with more routine decisions surrounding a patient’s life such as, their day to day routine or even who is allowed to visit, whilst such decisions may appear to be relatively minor, they can have a huge impact upon the quality of a person’s life.

Another important fact surrounding LPAs of this type are there use in making decisions regarding life sustaining treatment.

The 2018 Supreme Court decision in “An NHS Trust v Y” dealt with a man in his fifties who, suffered a cardiac arrest which caused his brain to be deprived of oxygen resulting in permanent damage and rendering him comatose. Whilst Mr Y did not have an LPA for Health & Welfare, his family believed that he would not have wanted his life to be artificially extended and the doctors agreed that this was not in his best interests. However, the hospital trust sought a declaration from the court that no criminal liability would result from the removal of his artificial feeding tube as this would ultimately result in Mr Y’s death.

In her judgement Lady Black acknowledged that whilst the Mental Capacity Act 2005 did make provision for the court to make decisions about an individual’s personal welfare where necessary, it did not single out a specific sub-class of decisions where such applications were always necessary. However, if, your family and the medics are not in agreement regarding your potential care and, you do not have an LPA for Health and Welfare in place, a court hearing will be necessary.

I see the importance but, can I create the document myself?

Seeking professional advice regarding documents such as your LPAs and Wills can often avoid the creation of a weak or flawed document being created which may be the case with DIY documents. For example, a self-made LPA may be legally inaccurate and, if it doesn’t consider all possible outcomes may actually create more emotional and financial strain when it comes into use rather than less.

What should I do if I want to discuss this further or create the LPA?

If you would like further information regarding LPAs or you would like to create such a document please contact Lucy Cortis on 01484 821 445 or alternatively via email on lucycortis@eatonsmith.co.uk for further details or to make an appointment.