Before creating a Health Power of Attorney, it’s important to understand its significance in designating trusted individuals to make healthcare decisions on your behalf if you’re unable to do so.

What you Need to Know

A Health Power of Attorney, also known as a Health and Welfare Lasting Power of Attorney (LPA), is a vital legal document that empowers you to designate a trusted individual or individuals as your attorneys to make crucial healthcare and personal welfare decisions on your behalf if you become unable to make them yourself. 

At Tann Law Solicitors, we specialise in helping individuals in Coventry and across the UK create Health LPAs to safeguard their interests and ensure their healthcare preferences are respected.

Why Create a Health Power of Attorney?

A Health LPA is a vital part of your estate and personal planning. Here are some key reasons to consider creating one:

Decision-Making Control: A Health LPA allows you to select a trusted person or persons to act as your attorneys and make critical healthcare decisions according to your preferences and values.

Peace of Mind: Knowing that you have designated someone you trust to make healthcare choices on your behalf can provide peace of mind in the event of an unexpected illness or incapacity.

Ensures Your Wishes Are Followed: With a Health LPA, your chosen attorneys can advocate for your medical treatment, living arrangements, and care based on your wishes, helping ensure that your preferences are respected.

Avoiding Court Intervention: Without a Health LPA, if you lose the capacity to make healthcare decisions, your loved ones may need to apply to the Court of Protection, a costly and time-consuming process. An LPA can help avoid this.

Creating Your Health Power of Attorney

Creating a Health LPA involves several essential steps:

  1. Select Your Attorneys: Choose one or more individuals you trust to act as your attorneys. Discuss your healthcare preferences with them to ensure they understand your values and wishes.

  2. Complete the LPA Forms: Both you and your attorneys must complete the specific LPA forms for health and welfare decisions. These forms are different from those used for property and financial affairs.

  3. Notify Trusted Parties: Inform individuals you trust, such as family members or close friends, about your Health LPA and its existence. This can help prevent misuse of the LPA’s powers.

  4. Registration: The completed LPA forms must be registered with the Office of the Public Guardian (OPG) before they can be used. A registration fee applies.

  5. Legal Guidance: Seeking legal advice when creating your Health LPA is advisable. A solicitor can provide expert guidance, ensure the forms are completed correctly, and help prevent potential issues in the future.

One’s ability to contest a powers of attorney

Disputes frequently arise when it is contested whether the donor had the mental capacity to execute the LPA. Another source of conflict is how a solicitor is perceived to be handling the donor’s business.

Typically, these disputes involve:

  • Whether the donor has the remaining capability
  • Costs incurred by the attorney
  • Attorney-made financial investment decisions
  • The sale and administration of the donor’s assets
  • Health care
  • The donor’s Will Gifts – the solicitor may only make modest gifts without court permission.

Resolving a Powers of Attorney Dispute

We defend claims brought by family members or third parties, as well as individuals who wish to contest the decisions of an attorney. Disputes can frequently be resolved following a meeting between the parties or through mediation. 

The Court of Protection (the court that handles the affairs of those who lack capacity) encourages parties to an attorney dispute to attempt alternative dispute resolution, so it is essential to seek specialised legal counsel. This is an area of expertise. Numerous of our solicitors are trained mediators who assist clients in resolving power of attorney disputes with minimal stress.

What Happens If No Solicitor Is Appointed?

If the donor did not appoint a solicitor before losing capacity, the Court of Protection would appoint a deputy with the same powers and responsibilities as a solicitor to manage their affairs. 

The court has the discretion to choose a deputy but generally prefers to appoint a friend or relative over a stranger (as long as it’s in the donor’s best interests to do so). 

The family member or close friend will be selected unless:

  • Investigating the proposed successor’s behaviour with the donor’s assets is necessary.
  • A conflict of interest
  • Ongoing discord between family members could impede the proper administration of the donor’s estate.
  • A necessity to ensure that the donor is not subject to undue influence (particularly the influence of the proposed deputy)
  • Evidence that the proposed deputy abused the donor physically, emotionally, or financially.

If the proposed deputy has a poor track record of managing their finances, the court will not appoint them as deputy. When there are significant disagreements among family members, the court may appoint an independent panel deputy (often a lawyer) to manage the donor’s affairs. 

The court will aim to do this with the agreement of the family to avoid unnecessary legal costs.

Who covers the costs for Power of Attorney Disputes?

The general rule in the Court of Protection is that the donor’s estate pays the objector’s costs. However, this only applies if you are always reasonable: if the court determines that an application was made in bad faith, it may disregard the general rule.

If you decide to object to the registration of an EPA or LPA, or to the actions of an attorney or deputy, you must adhere to the Court of Protection’s formalities when submitting your application. This can be quite complex, so it is recommended to employ a solicitor.

You may have been contacted by the Court of Protection regarding an objection to your appointment or the manner in which you are administering the estate as an attorney. 

Under these conditions, it is imperative that you seek legal counsel as soon as possible, and you should almost certainly also seek legal counsel to defend any action brought against you and to explain your conduct thus far.

 

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Why Choose Tann Law Solicitors?

At Tann Law Solicitors, our specialised expertise lies in Power of Attorney (POA) disputes. With deep knowledge and experience in resolving complex legal matters related to POAs, our solicitors offer tailored solutions to meet your unique circumstances, needs, goals and preferences. 

Rest assured that all POA forms and documents will be meticulously completed in full compliance with the latest legal requirements, ensuring the validity of your case. 

Our dedicated team prioritises the legal soundness of your case and manages your financial matters according to your wishes, providing you with peace of mind. We believe in transparent pricing and cost-effective solutions, making our services accessible to individuals from all backgrounds. 

With extensive experience in bringing and defending claims related to POAs, including inheritance act claims, trusts, enduring powers of attorney and deputyship applications, we have the expertise to guide you through the process, ensuring your rights and entitlements are protected. 

Let us assist you in making the application smooth and straightforward.

 

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