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Partner and Head of Family Law, Rugby
Many people think that having a Lasting or Enduring Power of Attorney to deal with their finances is all that they need in case they are not able to deal with their finances - but what happens about decisions for your health and welfare if you are unable to make them?
The country is still being affected by Covid-19 and some people who have recovered have been left with significant long term effects on their health.
So who makes the decisions about your treatment, where you live, and even what you wear and eat if you can’t?
The Mental Capacity Act 2005
This Act gives guidance on how decisions are to be made if you can’t make them.
1 Firstly there is an assumption that you have capacity to make the decision until there is evidence that you do not.
2 There needs to have been all reasonable steps taken to support you in order to make the decision but these have been unsuccessful.
3 Just because your decision would appear to some people as being unwise it does not mean you do not have the capacity to make that decision.
4 If you do not have capacity the decision is taken in your “best interests”
5 This “best interests” decision must be the least restrictive, this means have the least impact on your freedoms.
This means that decisions made in your best interests may not reflect what you would have chosen for yourself.
Appointing someone you trust as your Attorney means that you are choosing someone to put forward your views about the treatment proposed, where you live, what you want to wear or eat, and those views will be given as much weight as if you were saying this yourself.
You can also choose whether to permit your Attorneys to make decisions about life sustaining treatment, or whether this should be left to the health professionals.
The important thing to remember with the Lasting Power of Attorney for Health and Welfare is that when you have capacity to make a decision then you are able to. This means if for example you were in a coma, your Attorneys would put forward your wishes whilst you could not, but when you regained consciousness
, and had capacity to understand and make decisions, you would take back that control.
Who to choose as your Attorneys
You can choose anyone you trust to act for you as your Attorney as long as the person is over 18, and has capacity themselves but it is very important you discuss your wishes and views so that they know them and can put those forward when acting as your Attorney.
Some people choose different Attorneys for Health and Welfare than for Property and Finance and if you choose to do that they need to be able to work together. This is because some decisions will overlap. For example moving into a care home: this will have financial implications, as you may need to pay towards your care, but also a health and welfare aspect in making sure that the care at the home will meet your needs.
For more advice about making a Lasting Power of Attorney please contact Veronica Male, our Court of Protection specialist, on 01788 557 574 or by email on firstname.lastname@example.org.
For information about making Lasting Powers of Attorney and the role of an Attorney please visit our Attorney pages.