People find end-of-life planning unnerving for a whole host of reasons. And, although it’s a perfectly natural reaction, at Life Ledger, we often see the results of people not considering impact of their own mortality on those around them.
As unnecessary as it may seem in our happy, healthy lives, it is never too early to consider having a medical power of attorney in place. With this safely in place, you protect yourself and ensure your wishes are met, even if the worst should happen.
What is a medical power of attorney?
A medical power of attorney is a type of lasting power of attorney, for which an individual has granted the legal authority to make medical decisions on their behalf, should they be unable to do so themselves in the future.
If, for any reason, your mental capacity is compromised to the extent that you can no longer make these decisions independently, then your medical power of attorney will be asked to decide these matters for you.
They will be able to make key decisions about your medical care, including matters such as what you eat, where you live, and what medication you receive. These decisions will be made by the attorney, following what they believe your best wishes would be.
The medical power of attorney position is also commonly referred to as a health and welfare LPA, or HCPA.
This attorney is named and appointed by an individual (who is also known as the ‘donor’). Thanks to The Mental Capacity Act, the role of health and welfare LPA can be given to anyone that the individual chooses, including family members, spouses, a close friend, or a legal representative.
It is vital, however, that the donor chooses someone that they trust completely. After all, should the worst happen, your care, daily routine and medical treatments will be entirely in their hands.
What powers does a medical power of attorney have?
Generally speaking, a medical power of attorney will have the power to make decisions about the individual’s healthcare, medication, and entire daily routine.
However, it is important to note that these powers are only passed on to the attorney in the event that the individual has lost their mental capacity. This means that they are no longer in a healthy state of mind, meaning medical professionals have deemed them unable to independently care for themselves or make sound decisions.
Once this medical judgement has been passed, the medical power of attorney will have the power to make decisions regarding:
- Where the individual will live
- Whether they should go into a care home or receive domiciliary care
- Choose the care home or caregivers that will care for the individual
- Whether the individual should or should not receive a specific type of medical treatment
- Whether a particular medical treatment should stop being provided
- Make decisions about life-sustaining or life-saving medical treatments (if special permission is given)
- What the individual should eat
- Who the individual should, and should not, be allowed to see
The powers of a medical LPA are not limitless, however. There are several things that they are legally prevented from doing, including:
- Make decisions before the donor has lost their mental capacity.
- Make any decisions about the donor’s finances, unless they have also been named the finance LPA (more on this below).
- Overruling an advance decision that was made by the donor, in a will or through a solicitor before they lost their mental capacity.
- Furthermore, the attorney will have to check that an advance decision hasn’t been made, before making any decisions concerning life-sustaining or life-saving medical treatments.
- If the donor is either on hospital leave or sectioned, the attorney cannot prevent them from receiving medication prescribed by a medical professional.
- If a guardianship order is in place, the medical LPA will not be able to decide where the donor should live.
- Refusing basic treatments, in accordance with our human rights.
- Refusing emergency, life-saving treatment (unless the donor’s LPA form states specifically that you have given them the right to do this).
Ultimately, the decisions that the medical LPA can and cannot make will be governed by the specifications in your LPA form.
What are the benefits of naming a medical power of attorney?
Some people might be nervous about the idea of a medical power of attorney, and that’s completely understandable – it’s unnerving to think about the extent of the powers that they have, and over such personal decisions as your medical treatments and day-to-day life.
However, although the concept is intimidating, don’t let that put you off. So long as you choose someone who you can depend on and trust to follow your wishes, there are fantastic benefits to naming a medical power of attorney.
These benefits include, but aren’t limited to:
- Protecting your interests and ensuring your wishes are fulfilled
- Keeping these important decisions in the hands of someone that you trust
- No one – not even if they are your partner, your child or your parent – will get the right to make these medical decisions for you, unless they are named your medical power of attorney. So, if this is something that you wish, an LPA form is essential.
- Minimise the risk of future disagreements and arguments arising within the family, as one individual has been given clear, legal authority.
- Saving money in the future. If you lose mental capacity without naming an LPA, then the Court of Protection will name a Deputy to act as your attorney, which is an expensive process.
- Giving yourself and your loved one’s complete peace of mind.
If you choose not to name a medical LPA, then healthcare professionals will follow the specifications outlined in any advance decisions that you have made. If you did not complete this step either, then the professionals providing your care will ask your loved ones for their advice and make a decision that they believe would be the best thing for you.
In some situations, the courts may either name a deputy, or make key medical decisions on your behalf.
What is the difference between a medical and financial power of attorney?
There are two different types of power of attorney. These are the ordinary power of attorney and the lasting power of attorney. You might also have heard of an enduring power of attorney, but these were replaced by LPAs in 2007.
Beyond that, there are two types of lasting power of attorney: a medical LPA and a financial LPA
In both cases, the LPA will be enforced when the donor has lost their mental capacity.
While a medical LPA will be able to make decisions regarding the donor’s health and wellbeing, a property and financial affairs LPA is given control over the donor’s property and finances.
These two roles can either be given to the same person or two different people. And, unless the two roles are held by the same person, then neither LPA will have any say over the categories covered within the other.
How do you appoint a medical power of attorney?
You can choose to name either one or two different attorneys as your medical power of attorney. If you choose two LPAs, then you can also specify whether you would like them to act ‘jointly’ or ‘jointly and severally’.
Jointly means that the two LPAs must make any decisions together. If the roles are ‘jointly and severally’, then the two LPAs will make some of their decisions separately, and others together, depending on your specific requests.
For instance, you may ask that your two LPAs must jointly decide upon any life-sustaining medical care, but you would like just one of the LPAs to have the power to decide what nursing home you would go into.
When appointing a medical LPA, the individual you choose must be over 18 years of age. And, of course, it must be someone that you trust entirely. Before you submit the application, ask the individual whether they would be willing to take on this responsibility.
Once you have chosen your medical LPA, you will need to register this. You can do this through the GOV.UK website. From there, you will need to pay a fee for the application, and you will be asked to complete the online form.
After the registration of the medical LPA, you will receive the original document with the completed application.
Another key point here is that you can only register a medical LPA if you have full mental capacity at the time of your application.
Can I cancel/amend my medical power of attorney?
Yes, after your LPA application has been registered, you still have the ability to amend it at any time.
However, as with the initial application, you can only do so if you have full mental capacity at the time of the requested amendment. You will also need to inform the Office of the Public Guardian of your intention.
If you wish to cancel a medical LPA, you will need permission from the Court of Protection.
The courts will also protect you and your interests, limiting the powers of the LPA if they deem it necessary. For instance, if The Court of Protection has evidence that the attorney is either not following your wishes or advantageously using the situation to benefit themselves excessively, then they have the right to cancel the LPA.
If one of your loved ones notice that the attorney is not following your wishes, then they can submit a complaint to the Office of the Public Guardian or make a request to the Court of Protection to remove the attorney’s powers.
As scary as it may be to imagine yourself in the position of needing a medical LPA, it’s even scarier to think that these vital decisions could be made by complete strangers!
Even though medical and legal professionals have the skill to undertake these decisions with care and consideration, most of us would feel infinitely more comfortable knowing that this responsibility is in the hands of a loved one.
When the role is given to someone you know and trust, having a medical power of attorney in place can bring immense comfort, to both yourself and your family.