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Planning for the future is not always easy, especially when it involves thinking about losing capacity or making decisions at the end of life. But having the right legal arrangements in place can make all the difference, not only for your own peace of mind, but also for your loved ones.
Two of the most important legal tools available in England and Wales are Lasting Powers of Attorney (LPAs) and Deputyship Orders. These documents allow trusted individuals to act on your behalf if you are no longer able to make decisions for yourself. However, recent developments in Parliament, namely the passage of the Terminally Ill Adults (End of Life) Bill through a key stage in the House of Commons, could soon change the landscape around mental capacity and end-of-life decision-making.
What Is a Lasting Power of Attorney?
A Lasting Power of Attorney is a legal document that allows you (the donor) to appoint one or more people (your attorneys) to make decisions on your behalf if you lose the mental capacity to do so yourself.
There are two types of LPAs:
- Health and Welfare LPA – These covers decisions about your daily care, medical treatment, and even life-sustaining treatment — but only once you have lost capacity.
- Property and Financial Affairs LPA – These allow your attorney to manage your bank accounts, pay bills, and handle benefits, either with your permission or if you lose capacity.
You must make an LPA while you still have capacity, and it must be registered with the Office of the Public Guardian (OPG) before it can be used.
What Happens If You Do Not Have Capacity to Make an LPA?
If you lose capacity without an LPA in place, or if your loved one never had capacity, it is possible to apply to the Court of Protection for a Deputyship Order. This court order appoints a deputy (usually a family member or close friend, but sometimes a professional) to act on your behalf.
While deputies have similar powers to attorneys, the process of becoming one is more complex, time-consuming, and costly. There are also annual reporting duties (submitting an annual report to outline the actions and decisions you have made) and deputies may be subject to court supervision.
Therefore, it is advisable for you to make an LPA while you have capacity in order to give you more control and make life easier for your family.
The New Assisted Dying Bill: A Major Legal Shift
The Terminally Ill Adults (End of Life) Bill recently passed a significant hurdle in the House of Commons, with MPs voting 314 to 291 in favour. It now moves to the House of Lords for further scrutiny.
If it becomes law, the Bill will allow adults who are:
- Aged 18 or over,
- Diagnosed with a terminal illness, and
- Expected to live less than six months,
- to seek medical assistance to end their life, provided they meet strict safeguards.
These safeguards include:
- Mental Capacity: The person must be mentally capable of making the decision.
- Independent Oversight: A panel made up of a psychiatrist, lawyer, and social worker must independently verify the request.
- Voluntary and Informed Choice: The decision must be made freely and without any pressure from others.
How Does the Bill Affect LPAs and Deputyships?
The Assisted Dying Bill introduces a legal right that can only be exercised by individuals who retain capacity at the time of making the decision. This creates a unique situation in relation to Health and Welfare LPAs.
Families may incorrectly believe that an attorney or deputy can carry out all healthcare wishes under an LPA or Deputyship order. Although a Health and Welfare LPA allows attorneys to make medical decisions when the donor loses capacity, it would not allow them to consent to assisted dying on the donor’s behalf. Likewise, a deputyship order would not allow a deputy to decide on assisting dying. This is because the Bill specifically requires that the individual seeking assistance must have capacity at the time of the request — attorneys and deputies cannot make this choice for them.
This also reinforces the importance of discussing your wishes in detail with a lawyer and your proposed attorneys while you still have capacity, especially around difficult topics like life-sustaining treatment and end-of-life care.
Implications for Estate Planning and Wills
If the Assisted Dying Bill becomes law, we would advise clients who are facing terminal illness or would like to plan in case of a terminal illness, to seek urgent advice about their:
- Wills: to ensure they reflect their wishes accurately
- Inheritance tax planning: to avoid unintended consequences
- Trusts and guardianship: especially where dependants are involved
How We Can Help
At George Green LLP, we understand that planning for later life and difficult decisions about health, finances, or end-of-life care can feel overwhelming. Our specialist and experienced Private Client team is here to guide you through every step with empathy, discretion, and clarity.
We can help you:
- Draft and register Lasting Powers of Attorney tailored to your needs
- Apply for Deputyship orders if a loved one has already lost capacity
- We can help ensure you as a deputy or you as a donor (LPA) and your appointed Attorneys fully understand the legal limitations in light of the Assisted Dying Bill in order to avoid confusion or potential disputes in the future
- Review or update your Will and estate planning in light of recent changes or diagnoses
- Advise you on the implications of the Assisted Dying Bill, including how it may affect your rights and legal arrangements
- We are able to conduct home or hospice visits, to visit you at your convenience.
Whether you are planning ahead or dealing with an urgent situation, we offer practical advice, always with your best interests at heart. If you’d like to discuss LPAs or Deputyship orders, please get in touch with our team. You can call us on 01384 410410 or use our online enquiry form.