Profile Icon Search Icon

With the Possible Legalisation of ‘Assisted Dying’ on the Horizon, Is It Time to Consider Lasting Powers of Attorney for Health and Welfare?

What is a Lasting Power of Attorney for Health and Welfare?

A Lasting Power of Attorney is a document in which you (the donor) give someone else (the attorney(s)) the power to make decisions on your behalf. A Lasting Power of Attorney for Health and Welfare grants your attorney the authority to make decisions regarding your health and welfare if you are unable to make those decisions yourself.

What Health and Welfare Decisions Can My Attorney(s) Make?

Once you are judged to have lost capacity and are unable to make decisions yourself, your attorneys can:

  • Discuss your health and welfare with your GP.
  • Liaise with hospital doctors, consultants, and surgeons, and make decisions regarding the best treatment.
  • Speak with social services and occupational health professionals.
  • Arrange your care, whether it is needed at home or in a care home.
  • Withdraw or continue life-sustaining treatment (this is an additional power that can be included).

What Does the Proposed ‘Assisted Dying’ Legislation Provide For?

The legislation provides for terminally ill adults, who possess capacity and are not subject to coercion or pressure from others, to make the decision to end their life. This choice must be approved by two medical doctors and a High Court judge. Once authorised, a doctor may provide the person with the approved substance to end their life.

How Do Lasting Powers of Attorney for Health and Welfare and the Proposed ‘Assisted Dying’ Legislation Interact?

Under the proposed legislation, you must, among other criteria, be judged by medical professionals to have the capacity to make the decision to end your own life. If you lack the capacity to make this decision, you would not be able to choose the death provided for under this legislation.

However, even if you had a Lasting Power of Attorney for Health and Welfare, your attorney(s) would not be able to choose ‘assisted dying’ on your behalf. It must be the individual themselves who chooses assisted dying; an attorney does not have the power to make this decision for them.

What Happens if I Satisfy the Criteria, but My Attorneys Disagree With My Choice?

If you retain capacity, meet the criteria, and decide to end your own life, your attorneys cannot prevent you from doing so—even if they disagree with your choice. While you have capacity, you retain full autonomy over decisions regarding your health. Your attorneys can only act on your behalf once you are judged to have lost capacity.

Do I Need a Lasting Power of Attorney for Health and Welfare if the ‘Assisted Dying’ Bill Becomes Law?

Yes, you do.

The ‘assisted dying’ procedure will apply only to a very small number of people, and of that group, even fewer may seek assistance.

Unlike the ‘assisted dying’ criteria, a Lasting Power of Attorney for Health and Welfare can and should be arranged well in advance, without the diagnosis of a terminal illness. It acts as an ‘insurance’ document, providing your attorneys with a broad range of powers to manage your health and welfare if you become unable to do so.

What Happens if I Lose Capacity and Do Not Have a Lasting Power of Attorney for Health and Welfare?

If you lose capacity and do not have a Lasting Power of Attorney for Health and Welfare, the only option available is for someone to apply to the Court of Protection for an order granting them the power to make decisions on your behalf.

This process typically takes a minimum of 4–6 months (and can take upwards of 12 months). Moreover, it is estimated that 90% of such applications are not approved.

Given the time-consuming and uncertain nature of obtaining an order from the Court of Protection, it is crucial to have a Health LPA in place if you want specific individuals to make decisions regarding your health or social care.

We are experts in this area, with over 20 years’ experience in creating Powers of Attorney. We can help you set out your wishes using the correct terminology, ensuring that if the Health LPA is ever needed, your loved ones can carry out your instructions with peace of mind.

For more information, please contact us at 029 20 34 55 11 or powersofattorney@berrysmith.com.

For more insights check out our news here
Follow us on Linkedin!