Health and Welfare: Deputyship vs Lasting Power of Attorneys
  • 11th Sep 2019
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Lasting Power of Attorney (LPA)

There are two types or LPAs: one for Property and Financial Affairs and one for Health and Welfare. They allow you to appoint a person to become your ‘attorney’ and make decisions on your behalf in the event that you lose the mental capacity to do so yourself. LPAs are created before a person loses capacity as the person has to understand what they are doing when appointing someone as their attorney. The LPA is only officially recognised once it is registered with the Office of the Public Guardian. Once obtained, a Health and Welfare LPA gives your chosen attorneysthe legal authority to make the final decisions regarding your care and medical needs.

 

What is a Health and Welfare Deputy?

If you lose mental capacity and an LPA had not been prepared then a person (or persons) can apply to the Court of Protection to be appointed as your Deputy. Similar to LPAs, there are two types of Deputies: the most common being the Property and Financial affairs Deputy, or a Health and Welfare Deputy. Unlike LPAs, it is rare for the Court of Protection to appoint Health and Welfare Deputies for general purposes, instead preferring to grant orders for a specific situation. The Mental Capacity Act 2005 s17(1) provides a non-exhaustive list of examples of such situations, like determining where a vulnerable person may live if an agreement cannot be struck between family and social care services.

 

The case of Re Lawson [2019] EWCOP 22 clarified the principles which the Court of Protection considers in granting Health and Welfare Deputyships. It highlighted the need to balance protection of a person, whilst still enabling autonomy as much as possible. In cases where parents were applying to be deputies, the court stressed that whilst parents normally acted in the best interests of the child, they needed to be aware that an application could be made out of a protective desire to extend parental responsibility beyond the age of 18, which would not encourage personal development of an autonomous nature. The notion of acting in someone’s best interests requires the Court to draw a line between overly protecting and restricting a person, and a need to allow and encourage independent input from the person (as best they can). This is why Health and Welfare Deputyships are rarely granted for general purposes but ordered for specific issues arising in the vulnerable person’s life.

 

Is it worth getting an LPA?

Many people assume that when they get older or sick, their family and friends will take care of them. However, this belief means that in many situations, family and friends simply do not have the legal authority to make these decisions. If no LPA is put in place, although family may be consulted on welfare matters, the principle decision is often left to local authorities and so deciding factors are less subjective. The notion of ‘acting in a person’s best interests’ only requires that care needs are met, which means that more personal desires can be ignored. Whilst Deputyship orders can be used, they are timely and expensive to obtain with no guarantee of the Court granting it, you also lose the ability to choose your attorneys yourself, as you can under an LPA.

 

Mental capacity is not guaranteed at any stage of life, so an LPA can provide you with peace of mind that if anything were to happen in the future, your family has the ability to make the important decisions to take care of you and are usually best placed to know what you would have wanted.

 

Please contact Whitehead Monckton if you require assistance creating an LPA or making a Deputyship application.