Who decides on my care arrangements if I have no power of attorney?
‘It is not a good idea to put off making a lasting power of attorney, as there might come a day when it is not possible to do so,’ explains Clare Moreton a private client solicitor with Viewpoint Hill & Abbott Solicitors in Chelmsford. If you are deemed to lack the required mental capacity to understand and agree to this important legal document, then your care could be in the hands of other people.
Clare Moreton explains how decisions about care and living arrangements are made for someone who does not have a health and welfare power of attorney in place.
The legal right to make care decisions for you
Without a power of attorney, your nearest relatives do not automatically have authority to make decisions on your behalf. Instead, decisions regarding your health care and living arrangements will be made by your health care professional, the doctor or social worker who is in charge of your treatment or care. They will make decisions based upon what they consider to be in your best interest. Although your close relatives may be consulted, their wishes do not have to be followed.
Applying to act as a deputy for personal welfare
If you lose mental capacity your spouse or a close family member would have to apply to the Court of Protection seeking permission to be appointed as your personal welfare deputy. This would give them the legal power to make decisions regarding your medical treatment, living arrangements and other welfare issues on your behalf.
This is a timely and costly exercise involving a £365 application fee, a £100 mental capacity assessment and a £320 annual supervision fee. It can also be quite onerous on the deputy. If an order is granted, the deputy will be required to keep a written record of all important decisions they make on your behalf including who they consulted with to make those decisions, and submit an annual deputy report to the Office of the Public Guardian.
Is it time to make your health and welfare lasting power of attorney?
The best step you can take is to make a lasting power of attorney as soon as possible appointing a spouse/partner, adult child or a close friend to act as your attorneys. A health and welfare LPA will enable your attorneys to make decisions on your behalf in relation to living arrangements, medical treatment and whether to give or refuse consent to such treatment. Attorneys are only able to make these decisions once you have lost the capacity to make them yourself whether it be through injury or the onset of a medical condition.
For more information and advice on health and care decisions where someone lacks mental capacity, please contact Clare Moreton in the experienced private client team on 01245 258 892 or email firstname.lastname@example.org.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
Clare Moreton, Head of Private Client is available to provide you with FREE initial advice.
Call Clare on: 01245 258 892
Email Clare at: email@example.com.