In life, there may come times when individuals are temporarily or permanently unable to make decisions pertaining to their own health or personal welfare. These situations can arise due to accidents, illness, or age-related conditions like dementia. In such circumstances, having a Lasting Power of Attorney (LPA) set in place can offer significant peace of mind, both for the person in question and their loved ones. One of the common queries around LPAs, however, is whether they allow the appointed person (known as an ‘attorney’) to make health and care-related decisions on behalf of the individual (referred to as ‘the donor’). This article will explore the role of an LPA in relation to health decisions, discuss how it works in practice, and highlight key considerations you need to bear in mind.
A Lasting Power of Attorney is a legal document in England and Wales that allows a person (the donor) to appoint someone else (an attorney) to manage their affairs or make decisions on their behalf if they lose the mental capacity to do so themselves. LPAs were introduced under the Mental Capacity Act 2005 and replaced the former Enduring Power of Attorney (EPA), which only covered decisions related to financial matters.
There are two main types of LPA in the UK:
– Property and Financial Affairs LPA: This allows the appointed attorney to manage the donor’s financial matters, including paying bills, managing investments, and selling property, subject to the donor losing mental capacity or choosing for the LPA to take effect while they still have capacity.
– Health and Welfare LPA: This type focuses on personal matters such as decisions around the donor’s care arrangements, medical treatment, and even day-to-day considerations like diet and personal care.
Crucially, for the purposes of this article, it is the Health and Welfare LPA that is of primary interest when discussing health-related decisions. However, it is essential to understand the scope, limits, and implications of this legal authority in the context of healthcare.
A Health and Welfare LPA gives the appointed attorney authority to make decisions about the donor’s personal welfare, which explicitly encompasses health and care decisions. However, these powers come with specific conditions. One of the most important caveats is that the attorney’s authority under this type of LPA only comes into effect if and when the donor has lost the mental capacity to make decisions for themselves.
This means that as long as the donor can, in the view of medical professionals and/or legal authorities, make their own health or personal welfare decisions, they remain in control. Once the donor is deemed to lack mental capacity, however, the attorney becomes responsible for decision-making in a variety of domains, such as:
– Medical treatment, including decisions on operations, drugs, or treatment plans.
– Decisions about whether to accept or refuse life-sustaining treatment, provided explicit authorisation for this has been granted.
– Arrangements regarding care homes or assisted living accommodations, including whether the donor ought to enter residential care.
– Choices about the donor’s day-to-day health-related aspects, such as their routine, diet, and physical activities.
One critical point to remember is that the health and welfare LPA cannot be used for decisions relating to life-sustaining treatments unless the donor has specifically granted permission in the LPA form. We will explore this aspect in further detail below.
One of the most essential considerations when drafting a Health and Welfare LPA is whether the attorney will have the authority to make decisions about life-sustaining treatment. Life-sustaining treatment refers to any medical intervention that is considered necessary to keep a person alive, such as artificial ventilation, dialysis, or resuscitation attempts.
It is important for the donor to explicitly indicate their preferences regarding these treatments when setting up the LPA, as the attorney cannot automatically make such decisions. The donor will be asked whether they give the attorney the ability to give or refuse consent for treatments deemed life-sustaining by doctors.
The donor is given two choices:
1. Yes, give my attorney the authority to make decisions about life-sustaining treatment.
2. No, the attorney cannot make decisions about life-sustaining treatment; this will be left to the healthcare professionals in charge.
If the donor chooses the latter, their attorney can still make other health and care decisions, but the responsibility for life-sustaining treatment will fall to the medical professionals treating the individual. Medical professionals will be guided by the donor’s best interests, considering factors such as quality of life and any previously expressed wishes (e.g., through an advance decision or advance statement).
If an individual loses their mental capacity without having set up a Health and Welfare LPA beforehand, no one automatically has the right to make health-related decisions on their behalf, not even close family members. Instead, healthcare professionals will typically make decisions on a “best interests” basis, following guidelines provided by the Mental Capacity Act 2005. This can mean consulting with family and friends, but ultimately, the medical team retains responsibility.
In some cases, if there is significant conflict between the patient’s family and medical personnel, or if there is uncertainty about what the patient would want, a Court of Protection may be required to appoint a deputy to make decisions. Appointing a deputy is a more complex and time-consuming process compared to setting up an LPA and can lead to additional stress and delays in critical decision-making. This highlights the importance of proactively setting up an LPA to ensure a trusted person is empowered to act.
A crucial concept underlying the operation of an LPA is that of “mental capacity.” According to the Mental Capacity Act 2005, a person is said to lack mental capacity if they are unable to make a specific decision at the time it needs to be made because of a disturbance in the functioning of the mind or brain, whether permanent or temporary.
The Act outlines a clear test for determining mental capacity:
1. Can the person understand the information relevant to the decision?
2. Can they retain that information long enough to make the decision?
3. Are they able to weigh the information as part of the decision-making process?
4. Can they communicate their decision effectively, by talking, signing, or other means?
It is important to note that assessment of mental capacity is decision-specific. This means a person might have the capacity to make certain kinds of decisions (such as deciding what to eat for lunch) but lack capacity for others (such as whether to undergo a complex medical procedure).
Being appointed as an attorney for health and welfare involves a considerable amount of responsibility, particularly when it comes to making choices about someone else’s medical care. The attorney must always act in the donor’s best interests, even when these interests conflict with what they believe is right or may not align with their personal values.
The attorney is also obliged to follow the principles laid out in the Mental Capacity Act 2005. Among other things, this involves:
– Working towards enabling the donor to make their own decisions wherever possible.
– Taking into account the donor’s past and present wishes, even if the donor cannot currently express them.
– Consulting relevant family members, friends, or professionals if it helps to determine the donor’s best interests.
– Where the donor has made an advance decision (commonly known as a “living will”) about treatments they wish to refuse under specific conditions, the attorney must respect this wherever legally enforceable.
Making decisions about medical treatment, especially life-sustaining treatment, can be incredibly difficult from both an emotional and moral standpoint. Attorneys may face situations where they are confronted with differing family opinions, or where they must stand firm against healthcare professionals to ensure the donor’s wishes are respected. Consequently, donors should take care when deciding who to appoint as their attorney, ensuring that it is someone trusted who is capable of carrying out their wishes in challenging circumstances.
One advantage of an LPA is the level of control it gives the donor. As long as the donor retains mental capacity, they are free to revoke or change the LPA at any time, including appointing a new attorney or changing the scope of the powers granted.
Should the donor lose confidence in their attorney or feel that circumstances have changed, they can cancel the LPA by completing an official Revocation of LPA form and notifying the Office of the Public Guardian (OPG). It is important to cancel or amend an LPA while the donor still has mental capacity, as any changes made after mental capacity is lost may not be legally recognised.
While an LPA is a powerful and versatile tool for ensuring health decisions are made according to a person’s wishes, there are circumstances where it may not be sufficient. One example is if the donor has strong preferences about specific treatments or interventions and wants to ensure these are respected, even if their attorney has a different view. In such instances, an advance decision (also known as a living will) might be worth considering.
An advance decision is a legally binding document where an individual sets out their refusal of specific medical treatments in clearly defined circumstances. It can work alongside an LPA to ensure both the donor’s refusal of specific treatments and their general health preferences are adhered to.
For many people, the ability to decide how their healthcare is handled in situations where they lose mental capacity is a matter of profound importance. A Health and Welfare Lasting Power of Attorney provides a strong framework for passing the responsibility for such decisions to a trusted person. By empowering a trusted individual to make decisions about medical treatment, long-term care, and personal welfare, an LPA offers a sense of security and dignity for both the donor and their loved ones. However, it is essential to carefully consider the scope of authority granted, particularly around sensitive areas like life-sustaining treatment.
Privacy Policy
Terms and Conditions
Disclaimer
COPYRIGHT © 2024 MY WILL AND PROBATE
