Why a health and welfare power of attorney is a good idea

A health and welfare lasting power of attorney is a legal document which allows you to appoint people you trust to make decisions about health treatments and personal care for you if you lose the mental capacity to make such decisions for yourself

Sian Foster, a specialist with Ware & Kay in York explains how this document gives your attorney the power to make decisions, on your behalf and in your best interests, in regard to things like eating, washing, medical care, where you should live, or whether to continue life-sustaining treatment.

The exact decisions they can take for you will depend on your instructions. For example, an attorney can only consent to or refuse life-sustaining treatment on your behalf if you specifically state this.

You can give your healthcare attorney power to refuse medication or particular types of treatment, such as:

• cardiac resuscitation after a heart attack;
• a blood transfusion, for example, if you do not want one for religious reasons; or
• electroconvulsive therapy.

Your healthcare attorney is not allowed to refuse treatment for you if:

• you have the capacity to refuse the treatment for yourself;
• the treatment is prescribed by the clinician in charge after you have been sectioned under the Mental Health Act - the only treatment your attorney has the power to refuse in such circumstances is electroconvulsive therapy; or
• it is an emergency situation and the treatment is considered life-saving - unless you have made it clear that life-saving treatment should be refused.

A healthcare and welfare attorney cannot make decisions about your finances, business affairs or property matters. If you want an attorney to do this, you would need to make a separate property and financial affairs lasting power of attorney.

When does it come into force?

Health and welfare attorneys will only start making such decisions for you if you lose mental capacity. This may happen due to mental health problems, a brain injury caused by an accident or a stroke, alcohol or drug abuse, a learning disability, or as a result of a condition such as dementia. 

Under the Mental Capacity Act 2005, you would be judged to have lost mental capacity if you are unable to:

• understand the information relevant to the decision;
• retain that information;
• use or weigh that information as part of the process of making the decision; or
• communicate your decision, whether by talking, using sign language or any other means.

There is a two-stage test which must be applied to decide whether you have mental capacity. This involves asking:

• if there is an impairment of or disturbance in the functioning of your mind or brain? And if so:
• is the impairment or disturbance sufficient that you lack the capacity to make a particular decision?

Your family or carers will usually be responsible for deciding if you have mental capacity in everyday cases.  For example, a formal assessment by a healthcare professional will not be required to decide whether you are able to dress or cook for yourself.

Where more complex decisions are involved, such as consent for surgery, a doctor or healthcare professional will decide whether or not you have capacity to consent.

It is your attorney’s duty, as far as possible, to help you make your own decisions. The law is clear that assumptions made about your lack of capacity cannot be based on your age, appearance or condition.

Just because you are incapable of making one kind of decision does not automatically mean you cannot make other types of decision – this needs to be assessed on a case by case basis.

It is a good idea to get advice from a specialist solicitor to guide you through the process of making a power or attorney. They can advise you on selecting the right attorneys, talk you through the sorts of decisions that might be required if you lose mental capacity, and outline your options to ensure that your wishes are known. They will also ensure that the form is completed correctly and is legally valid. 

If you need help with setting up a health and welfare power of attorney, please contact Sian Foster on 01904 716000 or email sian.foster@warekay.co.uk.