Family Law

When we think about Lasting Powers of Attorney we usually think about property and financial affairs. There is, however, a second type of Lasting Power of Attorney which relates to health and care.

In the current circumstances, it may be particularly relevant and important to consider putting in place health and care Lasting Powers of Attorney.

A health and care Lasting Power of Attorney gives your attorneys the authority to make decisions relating to your medical treatment (including, if you wish, relating to life sustaining treatment), where you live (including whether you should move into a care home) and your day to day care (including things to do with your daily routine and diet) if you do not have the capacity to make such decisions yourself.

It is important to note that capacity can fluctuate. You may have capacity to make one decision but not another, you may have capacity on one day but not the next. When you can, you will, of course, make decisions for yourself and your attorneys must assist you to make decisions for yourself where possible. Where that is not possible, your attorneys will make decisions for you in your best interests.

Although doctors and other health and social care professionals will usually consult with your next of kin, that person does not have legal authority in the same as an attorney would. Also, your next of kin may not necessarily be who you would like the doctors to consult with. 

Therefore in order to have some control over what may happen in respect of your health and care if you were to lose capacity, you should consider appointing an attorney or attorneys for this purpose. It is, of course, important that once you have done so, you ensure that your attorneys are kept up to date with your wishes in relation to such matters so that they can take this into account in their decision making. 

If you were to lose capacity and did not have a health and care Lasting Power of Attorney in place and a decision needed to be made on your behalf then, in some circumstances, it may be necessary for an application to be made to the Court of Protection for someone to be appointed as your Deputy. This process can be lengthy and costly and is best avoided where possible.