When should you make a Lasting Power of Attorney for Health and Welfare?
Over the Summer and Autumn of 2007, professionals in the legal industry rushed to make Enduring Powers of Attorney (EPAs) before the 1st October when EPAs could no longer be made and the new Lasting Powers of Attorney (LPAs) would replace them.
Most people who were aware of the change wanted the short, cheap EPA, which did not need to be registered unless and until mental capacity was lost.
A lot of things can change in a decade. Lasting Powers of Attorney for Health and Welfare may not have seemed like a significant positive change at the time, but it was significant. For many people, the alternative of a Deputyship application would probably be satisfactory. Although the deputyship application is cumbersome, expensive and slow, eventually a suitable person would be appointed, depending on your family circumstances. This probably wouldn’t be the case for Health and Welfare when a Deputyship order is unlikely to be made and if it was, it could easily be the wrong person. Whilst most decent, competent people would make a reasonable financial attorney, for someone to make a good Health and Welfare Attorney they really need to know you, to understand what you want and what is important to you. You should be prepared to discuss medical issues at length and be open about your fears and concerns with any attorney that may be appointed. This may be difficult. It may help your attorney for you to complete, but not sign, a Living Will to give further information, and go through it with them but also leave them with something in writing to remind them of that conversation. (It is important not to sign a Living Will after you have made a Lasting Power of Attorney without considering it properly, as it may take precedence.)
The benefit that an attorney has over instructions on paper is that they can weigh up the circumstances. You may not want to be resuscitated with a serious illness, but if you had a life expectation of two years with cancer, you would probably want to be resuscitated if you had an unconnected swimming accident, or you might want to be resuscitated to say your final goodbyes to someone important who was rushing to see you. It would be impossible to cover every eventuality in writing, but the right attorney would know.
The medical profession can change their approach once they are aware of a Lasting Power of Attorney. This can be very important if the nature of your symptoms mean that it is hard for you to understand the medical information. Information can be difficult to understand even when you are well and can also change frequently in the light of more tests. You may be able to make your own decisions but need to absorb the information about it gradually which may not be possible on a busy ward. Without this document, it may not be possible for this information to be given to someone else to explain to you or remind you of the important information, and an already bad situation could be made much more stressful.
It is true that the Health and Welfare appointment needs to work well with the financial side.
A case which highlighted the importance of LPA was one which involved a lady who had suffered a stroke in Kathmandu. She had never made a LPA. Our firm were able to draw up the paperwork and a close friend of hers, who was with her and not being appointed as an attorney, acted as witness to a fairly feeble signature. Amazingly, the British educated Doctor who was treating her was able to act as a very good certificate provider. The trouble is that the registration period is 12 weeks long, which is a real issue when medical fees need to be paid. And it would have been very different if she did not have capacity, which could so easily have been the case
The answer to when to make a Lasting Power of Attorney has to be now, as soon as possible, before you need it, provided you know who you want to appoint.
(I should add that I wrote my own Lasting Power of Attorney for Health and Welfare, having made an Enduring Power of Attorney back in September 2007, whilst I was writing this blog.)