A number of recent test cases have put before the court the issue of how far a Health and Welfare Lasting Power of Attorney can go in its instructions to the attorneys and what they can ask them to do.

A Lasting Power of Attorney for Health and Welfare appoints someone to make decisions on your behalf regarding any issues relating to your care or medical treatment. This includes issues such as your daily routine and diet, in the event you can no longer make these decisions yourself.

An important part of the document specifies whether you would wish for your attorney or attorneys to be able to give or refuse consent regarding life saving medical treatment. This is any sort of medical intervention which would keep you alive, such as an operation, cancer treatment or artificial hydration and nutrition. If you allow your attorneys to make such decisions they can consent to or refuse such treatment as if they were you. If you do not allow them to make that decision then the doctor would make that decision on your behalf. People making Lasting Powers of Attorney very often have views as to in what circumstances they would wish to receive that treatment or otherwise and therefore often rely on their attorneys to put into effect their wishes.

They can go further and there is a place in a Lasting Power of Attorney to specify instructions and preferences as to how you would wish for your attorney to act in those circumstances. The recent test cases of RE DA & Ors have brought before the court the issue of the validity of any such wording which expresses a preference to or instructs an attorney to act in a way which amounts to helping them to die. The court have been very clear that these instructions are invalid as they go as far as asking the attorneys to act in a way which is against the law. The Office of the Public Guardian will therefore not register any Lasting Powers of Attorney with such wording within them. This must be distinguished from the above situation where permission is given to an attorney to refuse or consent to life saving treatment. The withdrawal of life sustaining treatment under such power is acceptable and would not be treated as assisted dying.

These cases went further to look at the importance of the wording of your Lasting Power of Attorney. Where more than one attorney is appointed they have to be appointed in one of three ways:-

  1. Jointly so that they must make all decisions together;
  2. Jointly and severally so that they can make decisions separately as well as together;
  3. Or jointly for some decisions and severally for others

Any wording which does not clearly fall into one of these three categories will be invalid.

It is therefore extremely important that Lasting Powers of Attorney are correctly prepared to ensure their validity. For any questions regarding Lasting Powers of Attorney contact our Emma Ingram, Wills and Probate solicitor at our Brighouse office on 01484 714400.