A strength of Attorney is a document that allows you to nominate another person to assist you in some capacity. It empowers that individual and gives them a legal standing in your stead.
In England there are three different types of strength of Attorney, General, Lasting for Finances and Lasting for Health and Welfare.
In a nutshell a General strength of Attorney is for people who retain mental capacity, meaning you nevertheless have your mental faculties, but are incapacitated by another method, such as going oversea or being in hospital for an extended period. The General strength of Attorney could empower another individual to manage your finances while you are unable, or to manage your business, it’s a very flexible document and can be drafted to cover most eventualities.
A Lasting strength of Attorney, either for Finances or Health and Welfare is to be used when you lose your mental capacity, either by dementia, accident or injury. It allows your nominated attorneys to manage your affairs for you when you are no longer capable of making decisions.
This article will focus on the Lasting strength for Health and Welfare.
In a Nutshell
This document is different to the financial strength, as it focuses on the wellbeing of the donor, the person who made the strength. There is a great deal of responsibility for the nominated attorney, so you must make sure that you nominate someone you trust and who is able to make these kinds of decisions on your behalf.
What Decisions can the Attorney Make
The nominated attorney will make very personal decisions regarding your care and wellbeing, including but not limited to: –
- Your daily routine, such as washing, dressing and eating
- Your medical care
- Where you might live if it becomes necessary for you to move out of your home
They will also be able to approach the person you have nominated to take care of your finances (unless they are the same person) and ask for funds to continue or enhance your current quality of life. They are permitted to use money in this manner provided it is for your assistance. Examples of what they can buy include but are not limited to: –
- New clothes for you
- Self-care for you, such as hairdressing, or spa treatments
- Decorating or improving your home or room in a care home
- Additional sustain, such as carers to help you enhance your lifestyle and go out more, for example to visit friends or relatives or to go on holiday
Decisions Regarding Hospital Treatment
They might (it is up to you) also have strength to make decisions regarding hospital treatment. This can include requesting certain treatments or refusing other treatments. However, not all attorneys will have this level of strength, it is up to you, the donor, to state if you wish them to have the strength to make these decisions.
You do not have to give your attorneys this level of responsibility, you could draft a living will that expresses your wishes as an different.
A Living Will
A Living Will is a legal statement from you, the donor, regarding which medical treatments you either want or don’t want.
Restrictions on What Attorneys Can and Cannot Do
Making a Lasting strength of Attorney for Health and Welfare can be a daunting experience, it can be worrying to give someone else a level of responsibility over your affairs.
However, you should be reassured that attorneys cannot simply take the strength given to them and run with it, there are restrictions on what they can and cannot do. These restrictions come from two places, the Court of Protection and you.
The Court of Protection is in place to prevent attorneys taking advantage of unprotected people. They control attorneys and act if one acts in such a way that it hurts the donor or is not in their best interest.
You have the strength to restrict your attorneys by the Lasting strength of Attorney document. You can list the types of responsibility you want the attorneys to have or not have, as the case may be. For example, if you want your attorneys to be able to make decisions for you regarding clothing and day-to-day care but not on where you live, then you can list this on the document and the attorneys will have no say in where you live should you need to move out of your current home.
You can also provide guidance on how you want decisions on your behalf to be made. If you have nominated more than one attorney you can have them act jointly, where they all must agree or severally where they can make decisions individually. Or you can place restrictions stating that they can make decisions as individuals for somethings, but must all agree for others. An example being,
Bob and Margaret are Attorneys for their Mum Janet. Bob lives with Janet and makes many decisions such as what clothes Janet will use and what they will eat that day. Bob is going away on a business trip for a associate of weeks and Janet needs to go into a hospital for respite care while Bob is away. Under the strength of Attorney that Janet set up Bob and Margaret must both agree 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 people you trust to help take care of you should you ever need it. They are only used when mental capacity is lost and allow the attorneys to make decisions regarding the physical and mental wellbeing of the donor. There are many restrictions on how these attorneys can act, some put in place and enforced by the Court of Protection, others can be put in place by the Donor.