Can I make decisions about my spouse’s medical care?

Lately, we’ve talked to quite a few clients who were surprised to find out they don’t have much say over medical decisions for their partner or spouse without a Lasting Power of Attorney (LPA). So, we thought it’d be a good idea to break down why having an LPA for your health and welfare is important and what it actually means.

Lasting Power of Attorney

In England and Wales, if your spouse or partner loses capacity, you have no authority to make medical decisions on their behalf unless you have a Lasting Power of Attorney (LPA) for Health and Welfare. While there is an obligation to listen to the views of a spouse or close family member or friend, there is no obligation to follow what they say. Without this, medical professionals and social services will decide what they believe is in their best interests. The default option can often be the preservation of life without having any regard to your own wishes or the quality of life you may have following medical intervention. We all have the right to refuse medical treatment, but exercising that right when we are ill or have lost capacity, either temporarily or permanently can be difficult. In such circumstances a Lasting Power of Attorney can be invaluable.

Unless a person is unconscious its rare they will lose all capacity. Although their decision making may be limited to what they want to eat or drink. When considering capacity, the key question is does the person have the ability to understand the consequences of doing or not doing any particular act?

A Lasting Power of Attorney (LPA) for Health and Welfare is a crucial legal document. It allows an adult (known as the donor) to appoint another person or persons (called the attorney(s)) to make health and welfare decisions on their behalf if they lose mental capacity. With this authority, an attorney can make decisions about medical treatment and care, where the donor should live, and other personal welfare matters, including end-of-life care. If the donor explicitly chooses this option, the attorney can even refuse consent to life-sustaining treatment. This is any form of medical treatment that keeps a person alive from a covid jab to open heart surgery. This goes a lot further than the signing of a Do Not Resuscitate (DNR).

LPA for Health and Welfare

An LPA for Health and Welfare only takes effect when the donor loses mental capacity to make a particular decision. While the donor still has capacity, they continue to make their own decisions. Without an LPA for Health and Welfare, expressing your wishes does not grant you legal authority to make decisions. Instead, medical professionals and social services will make decisions based on their judgment of what is in your partner’s best interests. Establishing an LPA for Health and Welfare beforehand can help ensure that your partner’s preferences are respected and that you are involved in any critical decisions about their care.

When a person cannot give consent to medical treatment it may only be carried out if its in their best interests. This is very subjective. There is no such thing as the “reasonable patient.” We all have different ideas of what is an acceptable quality of life. With this in mind Nigel George the head of our Life Planning Department has developed a Best Interest statement. This is a form which you can complete, its not obligatory, in which you can state the medical treatment you would and wouldn’t consent to and what you would regard as a minimal acceptable quality of life. We recommend all our clients complete it.

Why is it Important to Have a Legal Help

To set up an LPA for Health and Welfare, applications are made through the Office of the Public Guardian. It is advisable to seek legal guidance to ensure it is completed correctly and you and your attorney fully understand you rights and obligations under it. Having a Lasting Power of Attorney (LPA) for Health and Welfare ensures that your partner’s medical and personal welfare decisions are made by someone they trust, rather than by healthcare professionals or social services. Without this, you could be excluded from significant decisions regarding their care and they may get care they don’t want.

You may have already made an Enduring Power of Attorney, but if you have its important remember that only covers financial matters. Your attorney under such a document cant make health decisions. Equally you may have made a Living Will or Advance decision as they are now called. A health LPA is a far more flexible and useful document.