The powers devolved under an LPA can only be granted by a person who has the mental capacity to make their own decisions.

The Donor may therefore have to consider preparing an LPA before it is needed, as it could be too late to do so if they subsequently lose their mental capacity.

If a person has already lost the capacity to make their own decisions, the only option is to make an application to the Court of Protection to be a Deputy; this process is considerably lengthier and more expensive than the process for preparing an LPA.

Although an LPA must be registered before it can be used, registration does not raise any presumption that the Donor has lost capacity and, as the process can take several months, it is usually wise to register the LPA early to ensure that it is available should it need to be used.

Most people expect that making medical decisions or future planning for loved ones will be straightforward.

‘Next of kin’ is a title usually given to the nearest blood relative, but that title does not confer any legal authority to make health or medical decisions for an incapacitated adult.

Even if your loved ones all agree on how best to look after your finances and health (which often isn’t the case), it can be hugely stressful for them if they don’t know what your wishes are.

An LPA reduces the chances of disagreements between those closest to you and gives them the confidence that they are doing what you would wish. 

(For example, a donor can decide whether an attorney has the power to accept or refuse life-sustaining treatment.)

Without a Health & Welfare LPA, decisions are more likely to be made by a medical professional or the local authority involved in the care of the person.

They will be bound by law to do what they think is best for the person concerned and their decision will override any family requests.

A Health & Welfare LPA is the only way to ensure a family member or appointed attorney can make future health decisions for the ‘donor’.

It will allow them to talk to doctors and health professionals and make decisions about treatment, where a person should live and regarding any ongoing care and support required.

For more information about LPAs please see our FAQ page.