The importance of health and welfare lasting powers of attorney

A Lasting Power of Attorney provides reassurance that arrangements are in place so you can take future control of your own health and financial affairs. Lasting powers of attorney are important to everyone, no matter what age you are and this principal has been highlighted most recently in a Court of Protection case involving a middle aged man who was tragically injured in a motorbike accident.

The patient was diagnosed as being in a ‘minimally conscious state’ and was provided with life-prolonging treatment that his family contended the injured party would regard as ‘torture’ in those circumstances. The patient’s medical team believed, however, that he should be given a chance to make a recovery.

Unfortunately, in the circumstances, the patient had never made a Health & Welfare Lasting Power of Attorney. If he had, he would have previously had the opportunity and control to confirm who he wished to make decisions about his health and wellbeing, including the ability to elect, if he wished for his attorneys to make decisions about life sustaining treatment.

In the circumstances, although the patient was married, his medical team had the decision making power and not the patient’s family. Sadly, all too often members of the public rely on the concept of ‘next of kin’, which is a concept without any legal foundation. As a result of the lack of a Health & Welfare Lasting Power of Attorney, the patient’s family were left with no choice in the face of opposing medical opinion but to undertake an arduous court application to seek permission for the medical team to withdraw life-prolonging treatment and to allow the patient to receive palliative care.

In these circumstances, the court found in favour of the patient’s family. This tragic case underlines the importance of making Lasting Powers of Attorney for both young and old and highlights the need not to rely on the concept of ‘next of kin’.