Why make a Lasting Power of Attorney for Health and Welfare?
Sadly it is an inevitability of life that we may get ill and need medical treatment. If at that time we are not deemed have capacity to make our own decisions, who will make them for us? Our next of kin? A doctor? The relative who shouts loudest?
There are safeguards that can be put in place beforehand so that the people who know you best and whom you trust can be appointed to make decisions for you in the future.
The Mental Capacity Act 2005 was designed to provide a framework of protection for people who cannot make decisions for themselves because they lack the mental capacity to do so. In legal terms, capacity is always time and issue specific and a person is presumed to have capacity to make their own decisions. However, if a person is unable to understand, retain and weigh up information to make a decision it is likely that they will lack capacity to make a decision for themselves but a decision should only be taken for someone else is if all practical steps to help him or her to make a decision have been taken without success.
If it is concluded someone needs to make a decision on behalf of an incapacitated person, then that decision should always be in the person’s best interests. This approach underpins the Mental Capacity Act 2005 and can cover decisions about health, personal welfare and medical treatment. In such circumstances it would always be preferred for someone close to us, whom we trust, to decide what is in in our best interests.
By making a Lasting Power of Attorney for Health and Welfare, you can make that choice whom to appoint to make these decisions on your behalf.
A Lasting Power of Attorney can only be made by those who are able to understand this document and therefore once someone loses capacity, it is often too late.
The case law regarding mental capacity is evolving all the time. The Supreme Court has recently considered the Mental Capacity Act 2005 for the first time in the case of Aintree University Hospitals NHS Foundation Trust v James (2013) UKSC 67. The Supreme Court recognised that the definition of “best interests” is necessarily elusive, and that when looking at the best interests of a particular person at a particular time, decision-makers must look at the person’s welfare in the widest sense, not just medical but social and psychological, and must consult others who are looking after the person or interested in the person’s welfare.
While these guidelines should always be followed, reaching this position through the courts will have taken many months if not years, not to mention the cost of arguing through the courts about what decision should be made.
In order to avoid such a situation it will always be better to set out your wishes in a lasting power of attorney so that you will have already chosen the person to make decisions on your behalf and you can give guidance as to how any decisions should be made. This is a way to make sure that you make your own decisions, and determine what is best for you, not only in the present, but also in the future.
At odonnells solicitors we have highly experienced solicitors to take your instructions for the preparation of a lasting power of attorney for both financial and welfare matters. These are not documents that should be undertaken by generalists as the content of the document is crucial.
We offer a fixed fee for preparation and registration.
For more information, contact our office on 01772 881000 or visit www.odonnells-solicitors.co.uk