YOUR ROLE AS ATTORNEY OF A HEALTH AND CARE DECISIONS LASTING POWER OF ATTORNEY
You have agreed to be an Attorney (also called a Donee) of a Health and Care Decisions LPA.
When Do I Need to Act?
You can only act if:
- The Lasting Powers of Attorney has been registered with the Office of the Public Guardian
- You reasonably believe that your Donor (the person who made the Power of Attorney) has lost the mental capacity to make the decision in question, at the time it needs to be made
- In relation to life sustaining treatment and where there is no valid Advance Medical Decision (also commonly known as a Living Will) in place, the Lasting Powers of Attorney specifically allows you to make this decision. (There is no power to demand specific forms of treatment
- Please note that if the Donor has been detained under Part 4 of the Mental Health Act 1983, no decision can be made by you regarding treatment for their mental disorder.
What Actions Can I Take As An Attorney?
Unless the document restricts you, you will be able to make decisions about the Donor’s Health and Care, which might include
- Where the Donor should live and who they should live with
- The Donor’s day to day care, including diet and dress
- Who the Donor may have contact with
- Consenting to or refusing medical examination and treatment on the Donor’s behalf
- Arrangements needed for the Donor to be given medical, dental or optical treatment
- Assessment for and provision of community care services
- Whether the Donor should take part in social activities, leisure activities, education or training
- The Donor’s personal correspondence and papers
- Rights of access to personal information about the Donor, or
- Complaints about the Donor’s care or treatment.
When Acting In My Role As An Attorney What Do I Need To Consider?
In this role you have important duties and responsibilities which are set out in the Mental Capacity Act 2005 and explained in the Code of Practice, with which you should be familiar. This can be accessed from the Ministry of Justice website or a hard copy obtained from TSO (The Stationery Office). You can contact them on 0870 600 5522 or by email email@example.com
The following Principles set out in Section 1 of the Act are particularly important, and must be followed:
Principle 1 – It should be assumed that everyone has capacity to make his or her own decisions, unless it is proved otherwise.
Principle 2 – A person should have all the help and support possible to make and communicate their own decision before anyone concludes that they lack capacity to make their own decision.
Principle 3 – A person should not be treated as lacking capacity just because they make an unwise decision.
Principle 4 – Actions or decisions carried out on behalf of someone who lacks capacity must be in that person’s best interests
Principle 5 – Actions or decisions carried out on behalf of someone who lacks capacity should limit their rights and freedom of action as little as possible
- You must always act in the Donor’s best interests.
There is guidance in chapter 5 of the Code of Practice to help you, but in general terms, you need to:
- Consider the Donor’s past and present wishes, feelings, beliefs and values.
- Where practical and appropriate consult with
- Anyone caring for the Donor
- Close relatives and anyone else with an interest in their welfare
- Other Attorneys appointed by the Donor
- Always check whether the Donor has the capacity to make a particular decision themselves. You can act if the Donor does not, on a balance of probabilities, have capacity to make the required decision at the time
- Only make those decisions the Lasting Power of Attorney gives you authority to make ie:
- If you are acting only under a Health and Welfare Lasting Power of Attorney, you cannot make decisions about the Donor’s property and affairs
- If the Lasting Power of Attorney is restricted in any way your authority is limited. If you need further powers in the future, you will need to apply to the Court of Protection.
Other duties include having a duty to:
- Apply certain standards of care and skill (duty of care) when making decisions
- Carry out the Donor’s instruction
- Not take advantage of your position and not benefit yourself, but benefit the Donor (fiduciary duty)
- Not delegate decisions, unless authorised to do so
- Act in good faith
- Respect confidentiality
- Comply with the directions of the Court of Protection
- Not give up the role without telling the Donor and the Court
- In relation to end of life decisions, not be motivated by the desire to bring about the Donor’s death. You may be wishing to save the Donor suffering and to comply with his or her wishes.
How Do I Decide Whether or Not The Donor Has Capacity?
You use the test laid down in the Mental Capacity Act 2005, which comprises two stages:
Stage 1 – Does the person have an impairment of, or a disturbance in, the functioning of their mind or brain? Examples may include conditions associated with some form of dementia, or the long term effects of brain damage.
Stage 2 – Does the impairment or disturbance mean that the person is unable to make a specific decision? This stage can only be applied if you have taken all practical steps to support the Donor in making the decision and this has failed.
A person is considered to be unable to make a decision if they cannot on a balance of probabilities:
- Understand information about the decision to be made (the Act calls this ‘relevant information’)
- Retain that information in their mind
- Weigh that information as part of the decision making process, or
- Communicate their decision (by talking, by using sign language or by any other means)
The Code of Practice offers practical examples which will be very helpful to you, but essentially you need to give the Donor as much opportunity to make his or her own decisions as possible before you decide to act. Chapter 4 of the Code of Practice, sets out suggested steps for establishing ‘whether the Donor lacks capacity to make a particular decision’.
These notes are for general guidance only.
Our experienced team also includes a number of solicitors who are accredited by STEP, whose members are required to acquire additional technical qualifications and are subject to a Code of Professional Conduct, which requires them at all times to act with integrity and in a manner that inspires the confidence, respect and trust of their clients and of the wider community. STEP members are also required to keep up to date with the latest legal, technical and regulatory developments.
SFE members are all specialists in older client law, but what sets SFE members apart from other lawyers are their specialist client care skills that enable them to advise and support older and vulnerable clients. – click here to view our Code of Practice and Client Care Procedures.
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