Does COVID-19 mean that I should make a health decisions lasting power of attorney? Would it help to have an advance decision as well?

Life has been turned upside down in recent weeks and one result is that there is now a spike in enquiries from people who wonder whether they should have a lasting power of attorney (LPA) for health and welfare decisions. Often these individuals already have an LPA for financial decisions but, at the time, decided against having a health LPA as well. Some of them, when they made their wills, considered LPAs, but decided they either did not want a health LPA, or that they were not yet ready to make one.

The change that coronavirus has made is not, generally, that a health LPA is now needed where it was not before, but that coronavirus has brought into much sharper focus, for all of us, the reasons why we might want one. If the current situation has made you think that having a health LPA would give you peace of mind, now is the time to take our advice on how to create one.

Who makes the decisions?

The key point about a health LPA is that it enables you to choose who would make medical decisions for you if a time ever came when you were unable to do so, because of mental capacity problems. A health LPA (unlike a financial LPA) cannot be used to make decisions when an individual is still capable of making the decision themselves. If someone doesn’t have a health LPA then the medical staff, having talked to any members of the family that they know about and are able to contact, would make decisions, perhaps not knowing about points that matter greatly to you.

This ability to choose can be particularly important to individuals who do not have an ‘obvious’ person, such as a husband or wife, for the medical practitioners to approach.

Not an ‘instant fix’

A health LPA is not an ‘instant fix’. It is only valid if signed in paper form, and because of social distancing it is more complicated now than normally to obtain the necessary independent witnesses to signatures, though we can guide you through this. Once fully signed, an LPA must be registered at the Office of the Public Guardian (OPG) before it can be used. The OPG’s current official position is that they are still hoping to complete this registration process in the six weeks that they usually aim for, but this may change. A journey that is not started is never completed, and the time lag is never likely to be less than this. Indeed we must expect it to increase if the spike in instructions for LPAs is reflected, a short while later, in increased numbers of LPAs arriving at the OPG for registration. If coronavirus has made you reassess whether you want a health LPA, then get in touch and we can help you to work out whether it would indeed be right in your own particular circumstances.

What about an advance decision?

You may have underlying health problems, so that you know that your risk from coronavirus is greater than it is for some people. Or you may have strong views on treatments you would not want to be given. In this case you can, provided precise legal requirements about the form of the decision are met, make an advance decision (they used to be called ‘living wills’). In this you can specifically refuse certain treatments. The advantage of an advance decision is that it does not require registration and is effective immediately. So there is no delay. You can have both an advance decision and a health LPA, so you could make an advance decision to cover the period while an LPA was being registered. Care is required when combining in this way however, because it is easy to find that one of the documents unintentionally revokes the other.

Should I also make a financial LPA?

A health LPA only gives power to the attorney(s) to make health decisions where mental capacity has actually been lost. In those circumstances you would, obviously, not be able to run your financial affairs either, at least until recovery. So if you don’t already have a financial LPA, you may want to give serious thought to this. We can help you weigh the pros and cons.

Are LPAs right for everyone?

No. There are a few practical situations where we would advise you to think very carefully before going down the LPA route. The most obvious of these is where there is a history, or a fear, of family disagreement. If the attorneys might not be able to agree with each other, or if friction meant that the some members of the family could be expected to challenge the attorney’s decisions, then an LPA may make a difficult situation worse. Obviously if there were any risk that an LPA might be abused then it should not be considered. It is very much a case of balancing on the particular facts.

If there is no financial LPA then a ‘deputy’ can be appointed by the court to run a person’s financial affairs. The court will only appoint a health deputy in exceptional circumstances however, so it would be as well to assume that it would not do so for you. Anyway, there would be expense and delay in a court application. If, after we have looked at the practical situation carefully with you, you conclude that you would be better without a health LPA, then an advance decision may be the most effective way to make your decisions known and to some extent legally binding.

Where next?

For the majority of people an LPA provides a relatively simple way to put their mind at rest about what would happen if they were to have long or short term mental capacity problems. By discussing your situation with us you can work out what is best for you.

If you would like to know more please get in touch with your usual BDB Pitmans contact or else:
London office: Alastair Collett
Reading office: Sheilagh Magee
Southampton office: Emily Taylor