Health and welfare power of attorney

A health and welfare lasting power of attorney is a legal document which allows you to appoint people you trust to make decisions about health treatments and personal care for you if you lose the mental capacity to make such decisions for yourself.

Karen Starkey, a specialist with KWW Solicitors of East Molesey, explains how this document gives your attorney the power to make decisions, on your behalf and in your best interests, in regard to things like eating, washing, medical care, where you should live, or whether to continue life-sustaining treatment.

The exact decisions they can take for you will depend on your instructions. For example, an attorney can only consent to or refuse life-sustaining treatment on your behalf if you specifically state this.

You can give your healthcare attorney power to refuse medication or particular types of treatment, such as:

  • cardiac resuscitation after a heart attack;
  • a blood transfusion, for example if you do not want one for religious reasons; or
  • electroconvulsive therapy.

Your healthcare attorney is not allowed to refuse treatment for you if:

  • you have the capacity to refuse the treatment for yourself;
  • the treatment is prescribed by the clinician in charge after you have been sectioned under the Mental Health Act – the only treatment your attorney has the power to refuse in such circumstances is electroconvulsive therapy; or
  • it is an emergency situation and the treatment is considered life-saving – unless you have made it clear that life-saving treatment should be refused.

A healthcare and welfare attorney cannot make decisions about your finances, business affairs or property matters. If you want an attorney to do this, you would need to make a separate property and financial affairs lasting power of attorney.

When does it come into force?

Health and welfare attorneys will only start making such decisions for you if you lose mental capacity. This may happen due to mental health problems, a brain injury caused by an accident or a stroke, alcohol or drug abuse, a learning disability, or as a result of a condition such as dementia. 

Under the Mental Capacity Act 2005, you would be judged to have lost mental capacity if you are unable to:

  • understand the information relevant to the decision;
  • retain that information;
  • use or weigh that information as part of the process of making the decision; or
  • communicate your decision, whether by talking, using sign language or any other means.

There is a two-stage test which must be applied to decide whether you have mental capacity. This involves asking:

  • if there is an impairment of or disturbance in the functioning of your mind or brain? And if so:
  • is the impairment or disturbance sufficient that you lack the capacity to make a particular decision?

Your family or carers will usually be responsible for deciding if you have mental capacity in everyday cases.  For example, a formal assessment by a healthcare professional will not be required to decide whether you are able to dress or cook for yourself.

Where more complex decisions are involved, such as consent for surgery, a doctor or healthcare professional will decide whether or not you have capacity to consent.

It is your attorney’s duty, as far as possible, to help you make your own decisions. The law is clear that assumptions made about your lack of capacity cannot be based on your age, appearance or condition.

Just because you are incapable of making one kind of decision does not automatically mean you cannot make other types of decision – this needs to be assessed on a case by case basis.

It is a good idea to get advice from a specialist solicitor to guide you through the process of making a power or attorney. They can advise you on selecting the right attorneys, talk you through the sorts of decisions that might be required if you lose mental capacity, and outline your options to ensure that your wishes are known. They will also ensure that the form is completed correctly and is legally valid. 

If you need help with setting up a health and welfare power of attorney, please contact Karen Starkey on 0208 979 1131 or email k.starkey@kww.co.uk.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.


Cohabitation – don’t put yourself at risk

You may recall the Supreme Court case brought last year by the couple who wanted the right to enter into a civil partnership. Rebecca Steinfeld and Charles Keidan did not want to get married; they wanted legal recognition of their relationship.

The Supreme Court judges found in their favour, decreeing that The Civil Partnership Act 2004, which allows only same-sex couples to enter into a civil partnership, was incompatible with the European Convention on Human Rights. So now, we await a change of legislation from the Government, which is unlikely to be any time soon.

At KWW, we are concerned that unmarried couples remain vulnerable as they are not offered the same protection as married couples and civil partners. Cohabiting couples often assume that moving in together creates similar rights and responsibilities as marriage (so-called ‘common-law marriage’) or absolutely no rights at all. Both beliefs are wrong.

If you are moving in together, or you are the parent of someone in that position, you should know how cohabiting affects your/their legal position and what protections there are should the relationship end or one of the cohabitees dies.

A matter of identity

The vast majority of our clients would never dream of doing anything illegal.

However, a very tiny number of individuals may try to launder money through our accounts by instructing us to undertake work for them which at first sight appears legitimate but which is actually part of a process designed by them to hide the proceeds of criminal activity.
When we act for you, we are obliged by the Proceeds of Crime Act to ask you to provide us with proof of your identity and address. We may have to do this even though we have acted for you before. We may also have to ask you to provide further information about transactions which you instruct us to undertake on your behalf. We hope you will not find these requests to be intrusive and that you will appreciate why this is necessary.
The Proceeds of Crime Act places all solicitors under extremely strict rules to ensure criminals and terrorists do not try to use us as a way to launder money derived from criminal activities. One of the ways we do this is by being absolutely certain who we are acting for and precisely what the purpose of any transaction is. Failing to spot money laundering when we should can lead to us facing criminal charges so we take this issue very seriously.

All partners and employees of KWW Solicitors have been trained to spot attempts to launder money or other illegal financial transactions. They also undergo regular training to ensure their knowledge of this area is kept up to date.

KWW also has a dedicated partner who acts as the firm’s Money Laundering Reporting Officer. He has responsibility for the firm’s anti-money laundering policy and acts as our liaison with the National Crime Agency (NCA).

All solicitors firms, accountancy firms, banks and other financial institutions have a legal obligation to ensure they have procedures designed to combat money laundering.

Private Individuals
When acting for you we are required by law to check your identity and we may also wish to confirm information about your credit status. To verify the information you provide, we may make searches about you with a credit reference or fraud prevention agency; this will include information from the Electoral Roll. The agencies will record the details of the search and other organisations may share these searches to prevent fraud and money laundering. Scoring methods may be used as part of this process.
We will ask you to supply original documents as confirmation of your identity, address or both which we will use along with any electronic checks we perform. Any documents provided to us will be recorded and copied for audit purposes as part of our Anti-Money Laundering requirements.
Suitable items for the proof of identity could be a current passport or driving licence, and for the address, a utility bill, council tax bill or bank statement that is no more than three months old. We may also require supporting evidence of the source of any money involved, for example bank or building society documents, and full details of any third party to whom you may instruct us to send funds.

Corporate and other business clients
Before we can act on behalf of a company we will need to verify and identify the existence of the company including its name, business address, registration number and the names of at least two directors through the certificate of incorporation and/or details from Companies House. Additionally, we may request to see Annual Accounts and Incorporation documents and where necessary a suitable resolution confirming that the persons who are representing the company are properly authorised.
We may require supporting evidence of the source of any money involved, for example bank or building society documents, and full details of any third party to whom you may instruct us to send funds.

Contentious Wills

The number of Wills being contested by the children of a deceased parent is going up. We see two main reasons for this: the increasing number of second marriages, and children of the first marriage being excluded from the Will; and the rise in the number of parents making a Will when they do not have the mental capacity to do so. There is a link here with the rise in dementia cases.

Dementia sufferers can have good days and bad days, and their memory for things that happened years ago can be stronger than their recall of what happened 10 minutes beforehand. The swings in a dementia sufferer’s capacity poses obvious problems for us lawyers when assessing whether they had capacity when they made their Will.

If a person suffering from dementia does not understand the nature of making a Will and its implications, when it has been explained, then the document will not be valid and their Estate will be distributed in accordance with any previous valid Will or the Intestacy Rules. Because a person is assumed to have capacity at the time they execute their Will unless proven otherwise, any child contesting their parent’s Will must show their parent did not have capacity.

There is no English law which states that a parent must leave their Estate to their children and, accordingly, if the Will is rational and there is a valid explanation as to why a parent has excluded a child, it is often difficult to succeed with contesting the Will. The law states that for a Will to be valid, the following must apply:

• The parent must have known and understood they were making and executing a Will
• The parent ought to consider any claims against the Estate i.e. if a child is being excluded whether they may have a claim at a later date
• The parent must understand the extent of the property they are disposing
• The parent must not be subject to any disorder of the mind as shall “poison his affections, pervert his sense of right or prevent the exercise of his natural faculties” i.e. the dementia has not progressed to such a stage that it affects their mind
• The parent must have the mental capacity to make decisions which take into account the relevant property, persons and circumstances and to arrive at a “rational, fair and just Will”.

To address the above points, solicitors advising malcontent children will focus on:

• Whether the parent understood the information about the decisions to be made
• Whether the parent was able to retain that information in their mind
• Whether the parent was able to weigh up the information as part of the decision process and that they communicated their decision.

If, having gone through all the points listed above, there is still a concern the parent did not have capacity, the next steps are to collect evidence to support the case.

Solicitor’s File of Papers

It is important to note the instructions given by the parent to the solicitor, the reasons the Will was drafted and whether the solicitor was put on notice as regards any capacity issues. If a solicitor is on notice that there are issues relating to capacity, it is sensible for that solicitor to have the Will witnessed by a medical expert or a note on the file confirming that a medical practitioner has confirmed that the person had capacity. However, even if this step is not undertaken, it doesn’t mean the Will is invalid.

Medical Records

When looking at a parent who has executed a Will while suffering from dementia, a solicitor will review the medical records to determine:
• When the dementia was first diagnosed
• Any reference to the parent being confused
• Whether the parent had a mini mental state examination (MMSE test).
The MMSE test is a guide only: it does not examine in detail an individual’s ability to understand, retain, weigh up or communicate information directly related to a specific question.

Witness Evidence

In addition to family and friends, it is important to obtain evidence from individuals who have nothing to gain from the litigation and are seen as being “independent”.

Medical Report

Having obtained all the above evidence, it is normal practice to then instruct an appropriate medical expert who specialises in testamentary capacity and patients suffering from dementia. The evidence of a medical expert is often key to whether a child is successful in contesting a Will, so great care should be given to the instructions.

The above is for guidance purposes only. Contesting a Will where a parent has suffered from dementia can be extremely emotional, time-consuming and costly. It is therefore important to obtain legal advice at an early stage.