Lasting power of attorney (LPA)

When a person is too ill to make decisions about their health, welfare or finances, this responsibility can be delegated to another individual.

Any person, with or without HIV, could need someone else to make important decisions on their behalf if they should lose consciousness due to illness or injury.

In a person with HIV or AIDS, this may become necessary if psychiatric complications occur. Better treatment means this is far less common than in the past but people with HIV may still develop subtle difficulties with logic, memory, concentration and communication or more serious psychiatric problems such as HIV-related dementia.¹

A person may therefore wish to appoint someone to look after their interests in the future, in case this becomes necessary at some point.  They can identify this person (or more than one person) by granting them Lasting Power of Attorney (LPA).

There are two types of LPA:²

• Health and welfare

• Property and financial affairs.

Each of these LPAs must be registered separately (even if they are both granted to the same person) with the Office of the Public Guardian. There is a fee for this process.

Even if the ill person has granted someone else LPA for their health and welfare, they still retain the right to make their own decisions about these matters for as long as they are able to do so.³ Doctors are obliged to ascertain a patient’s ability to consent to treatment and to obtain their views as far as is possible.^4,5

If the ill person loses the capacity to make their own choices the attorney may then make decisions regarding medical treatment. They might also make choices about the care environment (for example, deciding whether the person needs to go into a nursing home), visitors, and everyday matters such as diet.³

If the individual wishes to give their attorney the power to make decisions about life-sustaining treatment, this must be explicitly stated in the LPA application form.³ Life-sustaining treatment means interventions that, if withdrawn, would be expected to lead to the person’s death. Some examples are being resuscitated during a heart attack or remaining on a ventilator.

This type of LPA could cover matters such as paying bills, collecting income or selling property. 

As with a health and welfare LPA, the appointed attorney may take responsibility for the ill person’s finances if they become incapable of making their own choices. However, one important difference is that the person can also choose to have the financial and property LPA take effect at any time, even if they are still capable of making their own decisions.⁶

Someone might choose this path if, for example, they are finding their routine financial responsibilities too burdensome because of declining health.

The person holding this type of LPA does not have the authority to make decisions about health and personal welfare, although they may be consulted as part of a wider discussion about the person’s best interests.⁶,⁴

Sometimes a person clearly lacks the capacity to make decisions but no LPA is in place.

No relative has an automatic right to make medical decisions for another adult but doctors will talk to the patient’s family and seek consent from the next of kin. There are no clear-cut rules on who is the next of kin, but it is usually considered to be the husband, wife or civil partner of the person, or their nearest blood relative.

An application must be made to the Court of Protection in the following cases:⁷

• property and financial decisions

• decisions about life-sustaining medical treatment

• disagreements that cannot be resolved in other ways

• where ongoing decisions must be made about someone who lacks capacity.

The Court can make decisions or appoint a deputy, who may be a family member or someone close to the person. If this is not possible, the Court can appoint a professional deputy.⁸

Many people will be involved in making decisions for the individual – carers, family, professionals, and an attorney or deputy. Everyone has a duty to work together in the best interests of the person.⁹ Family members – including civil partners – have a right to be consulted in these decisions.

Guidance and the necessary forms can be downloaded from the Office of the Public Guardian’s website. A person considering preparing an LPA should consult a solicitor. They should talk to their doctor when considering a health and welfare LPA, especially if they are thinking about giving their attorney the authority to decline life-sustaining treatment.

In Scotland, a similar system exists, known as Power of Attorney. A Welfare Power of Attorney covers decisions about health and personal welfare. A Continuing Power of Attorney concerns financial and property affairs. Both powers can be dealt with together in a single document. There is a separate Office of the Public Guardian in Scotland.

In Northern Ireland, decisions about financial and property affairs can be dealt with by an Enduring Power of Attorney. Further information is available from the Office of Care and Protection, Northern Ireland Courts Service.