Lasting Power of Attorney issues – Part 4

Following on from my earlier blogs these next set of common errors made by people when drafting the LPAs, but these are specific to Health and Welfare LPAs.

The first thing to point out that is different about this LPA from Property & Financial affairs, is that it can only be used when the donor lacks the mental capacity to make decisions for themselves.

Health & Welfare decisions are easy to understand if there is some kind of healthcare or medical professional giving advice, but welfare decisions can be harder to appreciate. These are probably the decisions that the donor would make for themselves without reference to anyone, such as who they visit, what they eat, what they wear.

Very importantly in Health & Welfare LPAs is a question relating to life sustaining treatment. The LPA will allow your attorney/s to make decisions about life sustaining treatment (option A) or not (option B). Option B means that any healthcare professionals supporting the donor would be the decision makers in that case, it is never a case that no decision is made, it is about who makes the decision!

Although it is possible to withdraw life sustaining treatment in certain circumstances, this means that death is imminent and is therefore allowed to take its natural course. Assisted suicide is a step further than allowing death to take its natural cause and is illegal in the UK. Assisted suicide is taking some kind of action to ensure death happens and death may not be imminent of itself. If anyone does want to commit suicide, they have to do it on their own and if they want to go to Dignitas in Switzerland, they have to be able to consent to it themselves. I’ve been advised that the process in Dignitas requires the individual to drink a lethal cocktail of drugs. Therefore whilst Dignitas might discuss the situation with the individual and obtain the drugs, they will not inject them, the individual must take the cocktail themselves, so they must retain the ability to suck the drugs through a straw as a minimum. It therefore remains suicide and not murder or manslaughter, with the individual taking the fatal action themselves. In the UK however assisting suicide remains illegal, as does counselling or procuring, ie encouraging someone or facilitating it.

So the most common clauses that would be severed are:

1. Clauses which allow the attorney to make health and welfare decisions when the donor is only physically incapacitated.
2. Restrictions that are incompatible with Option B
3. Clauses that authorise assisted suicide
4. Clauses that grant financial authority to the Health and Welfare attorneys

Any of these above clauses would be severed and as discussed, once notice of intention to sever has been received the donor (if they retain capacity) can then decide to allow the severance or to create another LPA without the offending clause, but it will cost another registration fee (currently £130).