Lasting Powers of Attorney for Health and Welfare England and Wales

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1 Lasting Powers of Attorney for Health and Welfare England and Wales This factsheet explains what a Lasting Power of Attorney for Health and Welfare is, how one can be used, and how to make one. This is applicable to people living in England and Wales. If you live in Scotland or Northern Ireland please see our factsheets Understanding Welfare Powers of Attorney Scotland or Your rights in Northern Ireland. If you have any questions or would like further information about your end-of-life rights and choices call our free Information Line on There are two separate types of Lasting Power of Attorney (LPA); a Property and Financial Affairs LPA, which covers areas of your life where money and property are involved, and a Health and Welfare LPA, which relates to decisions about your health, personal care and welfare. This factsheet only concerns a Health and Welfare LPA. What is a Health and Welfare Lasting Power of Attorney? A Health and Welfare LPA is a written document that gives one or more trusted persons the legal power to make decisions about your health and welfare if you lose the capacity to do so yourself. The person who grants power is known as the Donor and the person appointed to make decisions is the Attorney. What decisions can my Attorney(s) make? Your Attorney(s) can make decisions about anything to do with your health and welfare such as refusing medical treatment, where you are cared for and the type of care you receive, as well as day-to-day things like your diet, dress and daily routine. When making an LPA you must choose whether or not you want your Attorney to be able to make decisions about life-sustaining treatment. If you choose no, then all decisions about life-sustaining treatment would be made by your healthcare team (unless you have made an Advance Decision to Refuse Treatment, commonly called an Advance Decision). You can also list any restrictions that your Attorney must follow, or any guidance that you would like them to take into account when making decisions on your behalf.

2 Attorneys only begin to act for you if you lack the capacity to make or communicate the decision(s) in question. Your Attorney could not make decisions for you if you were able to do so yourself. Who should I give decision-making power to? Should you lose the ability to make or communicate decisions for yourself, the person you appoint will be able to make decisions about your health and welfare on your behalf. This can include decisions about life-sustaining treatment, if you give them this power. You therefore need to trust your Attorney(s) to understand your wishes, respect your values and make the best decisions for you. Your Attorney(s) must also feel confident and comfortable making potentially life-changing decisions on your behalf. You should discuss your wishes at length with your prospective Attorney(s). To help you decide who to appoint, ask yourself these questions: Do they understand my wishes? Will they respect my values? Could they stand up for what I want, even if the doctor disagrees? Do they live near me? Can they be contacted in an emergency? What does capacity mean? Mental capacity is the ability to make decisions for yourself about a particular matter. Having capacity means having the ability to understand and retain information relating to the decision, understanding the consequences of any choice you make, taking that information into account, and being able to communicate your wishes. You might lack capacity because, for example, you have: dementia a mental health problem a brain injury had a stroke been given end-of-life sedation If you are an adult with mental capacity you have the legal right to refuse any medical treatment, and the law assumes that individuals have the capacity to make decisions unless it is proven otherwise. For decisions about your health, care and consent to or refusal of treatment, a doctor or other healthcare professional will need to decide whether you have the capacity to make that decision. Whether or not you have capacity is decided on a decision-by-decision basis. For example, you might have capacity to decide whether you want to be cared for in hospital or at home, but not have capacity to decide whether you want to refuse life-

3 sustaining treatment. You might lose capacity to make a decision for a short time (for instance, if you are knocked unconscious) or for the indefinite future (for instance, if you were in a persistent vegetative state). How do I make a Health and Welfare Lasting Power of Attorney? There are 3 key steps to the process: 1. Choose your Attorney(s) and the other people needed to make your LPA (see below) 2. Complete the form (available from the Office of the Public Guardian) 3. Register your LPA with the Office of the Public Guardian The Office if the Public Guardian (OPG) is part of the Ministry of Justice. They manage the LPA registration process and maintain a register of all LPAs. They also deal with any complaints if, for example, someone feels that an Attorney is acting wrongly. Who is involved in making a Lasting Power of Attorney? There are a number of people involved in making an LPA. They include: a) Your Attorney(s) Your Attorney(s) can be any person over the age of 18 who has mental capacity. It is important to appoint someone you trust and who understands your wishes. When filling out the form you can also appoint a replacement Attorney to take over if your original Attorney cannot continue to act. You can appoint more than one person if you wish. If you do so then you can appoint your Attorneys to act in one of three ways: - Jointly This means that your Attorneys will have to make decisions together and agree on all decisions made. It also means that if one Attorney dies or is untraceable your LPA will become invalid and if a replacement Attorney has been appointed, they will step in to act alone. - Jointly and severally This means your Attorneys have to agree on decisions that are made together but they can also act alone. If one of your Attorneys dies or is untraceable, the LPA will remain in place and can be used by your remaining Attorney. - Jointly for some decisions, and jointly and severally for other decisions This means you can specify the decisions that should be made together and the decisions where the Attorneys can act alone. Appointing more than one Attorney can act as a safeguard to ensure that your wishes and best interests are respected. However, appointing multiple Attorneys may create

4 conflict if they have to agree on all decisions before they can take any action on your behalf. Your Attorney will have a lot of responsibility for your health and welfare so there are a number of safeguards in place to ensure that they use their power safely and make decisions in your best interests. As well as the possibility of appointing joint Attorneys, the requirements listed below reduce the chance of any abuse or misuse. b) Certificate Provider A valid LPA must include a certificate completed by an independent person who has known you well for at least two years, or who has the relevant professional skills (e.g. doctor, nurse, solicitor, psychologist) to enable them to confirm that, in their opinion: you understand the purpose of the LPA and the decision-making power that any Attorney would have; no fraudulent activity or undue pressure is being used to make you to create the LPA; there are no other factors that should prevent the LPA being created. A Certificate Provider cannot be: under 18 or a member of your or the Attorney's family; a business partner or paid employee of you or the Attorney(s); an Attorney appointed by you in this or another LPA or any old Enduring Power of Attorney; the owner, director, manager or an employee of a care home in which you live or a member of their family. c) Person(s) to be told On the LPA form, you can list up to 5 people (not the Attorney or Certificate Provider) who know you well. Before the LPA form is registered, these person(s) to be told are notified that you are making a LPA and given 3 weeks to raise concerns or objections. This acts as a safeguard against fraud and helps to check you are not making an LPA under duress. If you decide not to have any person(s) to be told you must instead have a second Certificate Provider. d) Witness The witness is the person who witnesses your signature on the LPA form and must be over the age of 18. They cannot be the same person as your Attorney(s), but they can be your certificate provider. There are some restrictions over who can act as a witness, for example: you and your Attorney must not witness each other's signature; it is not advisable for your spouse or civil partner to witness your signature

5 If you are unable to sign for yourself, you can make your mark or direct someone to sign for you in the presence of a witness. The Form You can either a) ask the Office of the Public Guardian to send the form to you; b) download it from their website; or c) complete it online using their digital tool. The form has 3 parts and must be signed in the correct order. For more detailed information on completing the form please see our factsheet Key Tips and Facts for Making an LPA England and Wales. Part A: The Donor (you) completes Part A giving the details of the Attorney(s) and the Person(s) to be told. It must be signed and dated by you in the presence of a witness. In part A you and your witness must also sign to indicate whether or not you want your Attorney(s) to be able to make decisions about life-sustaining treatment. If you want to list restrictions that your Attorney(s) must follow, or guidance that you would like them to take into account when making decisions on your behalf, these must be set out in part A. Part B: The Certificate Provider completes, signs and dates Part B Part C: The Attorney(s) and any replacement Attorney(s) must sign Part C in the presence of a witness to confirm that they understand their role and the responsibilities involved. How do I then register a Health and Welfare Lasting Power of Attorney? The LPA can be registered by you (while you still have capacity) or by your Attorney (at any time). Once the LPA form is completed and signed by everyone you then need to complete the following forms to register it: LPA001 notice of intention to apply for registration of a Lasting Power of Attorney. You have to send this form to the person(s) to be told who you listed in section A of the form. You do not need to send these forms to the OPG. LPA002 application to register a Lasting Power of Attorney. You then post the completed LPA form and LPA002 form to the OPG with payment. The LPA can only be used after it has been registered and stamped on every page by the Office of the Public Guardian. Registration can take up to 8 weeks. There is no requirement to register a Lasting Power of Attorney straight away but the Office of the Public Guardian strongly recommend that you do so. If you register your

6 LPA immediately, any errors in the forms can be identified while you still have the capacity to correct them. If your LPA is not registered until you lose capacity and it contains errors that result in your form being rejected, you will not be able to correct these errors and re-send the form and your LPA will therefore be invalid. How much does it cost? It costs 110 to register a Lasting Power of Attorney (please note that if you are also completing a Property and Financial Affairs LPA the fee is applicable to each form separately). If the LPA form contains any errors your OPG case handler will contact you to explain what the error is. If the form contains a restriction or guidance that won t work in practice then the OPG will apply to the Court of Protection to have that part removed from the form (this won t cost you anything) before registering it. They may need to send the form back to you to amend something, for example if any of the dates were wrong. If this is the case you have 3 months to re-submit it and an additional 65 fee is applicable to reapply for registration. Major errors (for example if your Attorney has died since you filled in the form) will require you to re-write the LPA completely and another 110 will have to be paid. Reduced fees You may be eligible for a reduction in the fees. For example some people on low incomes or certain benefits can apply for a reduction. More information on this can obtained from the OPG. Relationship to Advance Decisions An Advance Decision is a document that allows you to make a legally binding refusal of medical treatment in advance of a time when you can t communicate your wishes, or don t have the capacity to make a decision. If you are considering making both a Lasting Power of Attorney and an Advance Decision it is important to bear in mind that the more recent document takes precedence. This means that if you appoint someone as your LPA after you have made an Advance Decision your Advance Decision will then become invalid. However, where a person makes a Health and Welfare LPA first (regardless of whether it provides authority to give or refuse consent to life-sustaining treatment) and subsequently makes an Advance Decision, which is valid and applicable in the circumstances, the Advance Decision takes precedence for dealing with that particular circumstance.

7 If you have an Advance Decision you should let your Attorney(s) know and discuss the content of your Advance Decision with them. How can we help? - For more information on the differences between Advance Decisions and LPAs see our factsheets: - Issues to consider when deciding between a Lasting Power of Attorney and an Advance Decision to Refuse Treatment England and Wales - Understanding Advance Decisions to Refuse Treatment England and Wales - Key Tips and Facts for making an LPA England and Wales - Compassion in Dying can support you to make an LPA or an Advance Decision - We provide a free and comprehensive guide to Your Rights at the End of Life If you would like any of the other factsheets mentioned here, or help with completing an Advance Decision, making a Lasting Power of Attorney, or information about endof-life rights more generally please call our free Information Line on Office of the Public Guardian: To contact the Office of the Public Guardian directly: Tel: Web: All the forms mentioned here are available from the Office of the Public Guardian s website: They are also available in accessible format by ringing To access the online tool visit: