A power of attorney is a document that allows you to designate another person to assist you in some capacity. It empowers that person and puts them in your place to gain legal status.
In England, there are three different types of Powers of Attorney, a General Power of Attorney, a Financial Lasting Power of Attorney and a Health and Welfare Lasting Power of Attorney.
In short, a general power of attorney is for people with retained mental capacity, which means you still have mental capacity but have lost capacity through other means, such as going abroad or staying in a long-term hospital. A general power of attorney authorizes another person to manage your finances or manage your business when you are unable to do so, and it is a very flexible document that can be drafted to cover most situations that could arise.
A durable power of attorney can be used when you have lost your mental capacity as a result of dementia, accident or injury, whether for finances or health and benefits. It allows your appointed attorney to manage matters for you when you are no longer able to make decisions.
This article will focus on the staying power of health and wellbeing.
This document differs from financial power because it focuses on the well-being of the donors, the people who create the power. Appointed attorneys come with a great deal of responsibility, so you must ensure that you are appointing someone you trust and who can make these types of decisions on your behalf.
what decisions a lawyer can make
The appointed attorney will make very individual decisions about your care and health, including but not limited to:-
your daily life, such as washing, dressing and eating
where you might live if you had to move out of your home
They can also contact the person you designate to be responsible for your finances (unless they are the same person) and request funds to maintain or improve your current quality of life. They are allowed to spend money this way as long as it is for your benefit. Examples of what they can purchase include but are not limited to:-
new clothes for you
provide you with self-care, such as a hairdresser or spa
Decorate or improve a room in your home or nursing home
Additional support, such as carers to help you improve your lifestyle and get out more, such as visiting friends or relatives or going on holiday
Decisions about hospitalization
They may (up to you) also have the right to make decisions about hospital treatment. This may include asking for certain treatments or refusing others. However, not all attorneys have this level of power, and it’s up to you, the donor, whether you want them to have the power to make those decisions.
Instead of giving your attorney this level of responsibility, you can draft a living will that expresses your wishes as an alternative.
A living will is a legal statement made by you as a donor about the medical care you do or do not want.
Limitations on what lawyers can and cannot do
Creating an enduring power of attorney for health and welfare can be a daunting experience, and having someone else take some level of responsibility for your affairs can be worrisome.
However, you should rest assured that lawyers cannot simply take advantage of the powers given to them and do whatever they want, there are limits to what they can and cannot do. These restrictions come from two places, the court of protection and you.
Courts of protection were created to prevent lawyers from taking advantage of vulnerable groups. They police lawyers and take action if their actions harm donors or are not in their best interests.
You have the right to limit your attorney through an enduring power of attorney document. You can list the types of responsibilities that you would like the attorney to have or not to have, depending on the situation. For example, if you want your attorney to be able to make decisions for you about clothing and day-to-day care, but not about where you live, you can list this in the document without the attorney saying anything about where you live Right to live if you need to move out of your current home.
You can also provide guidance on how you want decisions to be made on your behalf. If you appoint more than one agent, you can have them act together, and they all must agree, or individually, and they can make decisions individually. Or, you can set limits stating that they can make a decision for something as an individual, but must agree with others. An example is,
Bob and Margaret are lawyers for their mom, Janet. Bob lives with Janet and makes many decisions, such as what Janet wears that day and what they eat. Bob is traveling for several weeks and Janet needs to go to the hospital for respite care while Bob is away. According to the power of attorney set up by Janet, Bob and Margaret must agree on which hospital would be best for Janet to stay in. Bob cannot make this decision alone.
Health and welfare powers are important and allow you to nominate someone you trust to help look after you when you need them. They are used only in cases of incapacity and allow attorneys to make decisions about the donor’s physical and mental health. There are many restrictions on how these agents can behave, some of which are set and enforced by the court of protection, others can be set by the donor.
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