Lasting Powers of Attorney & How They Affect Doctors
The practice of lifetime authorities came of age in the Nineteenth Century with the development of trust laws and incorporation of businesses and the idea that ownership and management of property could be separated. This arose of necessity with the expansion of wealth restricted to a minority set against feudal laws relating to property and the principle of lifetime monogamy. So it was that women only became entitled to own land in 1857 and divorce required an Act of Parliament.
Some people like to think of Powers of Attorney as lifetime wills and there are marked similarities. The rules for making wills date from 1837 and are simply for making appointments to handle our affairs after death and distributing wealth. Being so limited in scope they only take effect after death and do not allow for more modern developments in life such as cohabitation, divorce, step parenting, fragmented families, etc. They are also private with no need to register and do not deal with lifetime considerations – pets, organ donations, medical procedures to name but a few (although they could).
Development of Powers of Attorney
Until 1971 Powers of Attorney had to be personally ratified so they were difficult to rely on because it was not known if the Donor had lost capacity. After that time legislation gave third parties a measure of protection if transactions under the power were conducted within twelve months and thereafter, provided the Donee gave a sworn statement that he knew of no circumstances in which the power had lapsed.
The Mental Health Acts provided for an application to be made to the Court of Protection for a Receivership order based on medical evidence of permanent mental incapacity. Because such orders require all assets to be placed under the control of the Court they are unwieldy for families and expensive. They are also inappropriate in cases of transient or temporary incapacity, e.g. stroke patients. What was needed was a user friendly form of authority which could be used if and when necessary.
The Enduring Powers of Attorney Act 1986 provided for Powers made with full capacity to endure a period of incapacity with the need to register at the Court of Protection only if capacity was lost. The weakness of the scheme was that anyone dealing with the Attorney would not necessarily know if the Donor had lost capacity and whether registration had become necessary. It was estimated that only twenty per cent of powers were registered in circumstances when they should be although there was no evidence of widespread abuse. The creation of Enduring Powers was abolished on 1st October 2007 although existing powers continue to have legal force. However, they can only ever deal with property and financial matters.
The Mental Capacity Act 2005
The MCA was conceived in 1995 and came into force on 1st October 2007. The object of the Act is to:-
Maximise the capacity of those who lack capacity to make certain decisions for themselves, protect adults with mental incapacity issues from abuse and neglect, and, provide clarity for family, informal carers and professionals as to when they may act or make decisions for themselves.
To achieve this, the Act provides for a comprehensive framework for assisting those lacking capacity to make decisions for themselves to be taken properly on their behalf and in their best interests when they lack capacity. It rests on well established principles of ‘best interest’ and presumption of capacity. The Act endeavours to strike a delicate balance between respect for individual autonomy and the need to protect the vulnerable. Whether it achieves this remains to be seen.
The Act will affect a large range of people. It is estimated that over 700,000 in the UK suffer from dementia, and that this is expected to rise to around 840,000 by 2010. About 145,000 adults in England have severe and profound learning difficulties and at least 1.2 million have a minimum to moderate disability. It is thought that, at some point in their lives, roughly 1% of the UK population will suffer from schizophrenia, 1% will be subject to manic depression and some 5% will have some form of serious or clinical depression. The Act therefore has considerable application.
The key to understanding the Act lies in the supplementary Code of Practice. The Act specifically provides that ‘it is the duty of a person to have regard to any relevant code if he is acting in relation to a person who lacks capacity’. The person then mentioned includes donees of a Lasting Power of Attorney and Deputies appointed by the Court.
For the purposes of the Act a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
A person is ‘unable to make a decision’ if he is unable:-
- To understand the information relevant to the decision
- To retain the information
- To use or weigh that information as part of the process of making the decision or
- To communicate his decision (whether by talking, use of sign language or any other means).
We now have a much clearer test of capacity as to whether or not a person lacks capacity. However, the Act goes on to say that a person is not to be regarded as unable to understand the information relevant to the decision if he is unable to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means). This is much more controversial since the Code of Practice makes it clear that when seeking to give explanations one can use methods designed to help stimulate memory recall and recognition in a person with dementia. Further, the fact that a person is unable to retain information relevant to a decision for a short time is not to be regarded as preventing him from making a decision. What this seems to boil down to is that, if someone can be helped to make a decision to retain information then they will not qualify for the appointment of a deputy and the protection which goes with such an appointment.
Receivers, Attorneys and Deputies all have a duty to act in the best interest of the Donor. The Act requires as far as reasonably practical to permit and encourage the Donor to participate or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.
In addition, the person making the decision must consider so far as reasonably ascertainable:-
- The Patient’s past and present wishes and feelings (and in particular, any relevant written statement made by him when he had capacity),
- The Patient’s belief and values that would be likely to influence his decision if he had capacity and
- The other factors that he would be likely to consider if he were able to do so.
Again, the person making the decision must take into account (and if it is practical and appropriate to consult them), the views of:-
- Anyone named by the Patient as someone to be consulted on the matter in question or on matters of that kind
- Anyone engaged in caring for the person or interested in his welfare
- Any donee of the lasting power of attorney granted by the person and
- Any deputy appointed for the person by the Court
as to what the person’s best interests are and, in particular as the matters mentioned above.
The Code of Practice provides that where written statements are well thought out and considered they should carry particular weight. (Advanced directives)
Lasting Powers of Attorney
A basic distinction between LPAs and EPAs is that LPAs can authorise the Attorney to make decisions on the Donor’s behalf in respect of welfare matters as matters related to property and financial affairs. Thus, LPAs can authorise Attorneys to make decisions about medical treatment, residence and contact with other persons.
It is important to distinguish between welfare LPAs and financial LPAs. Crucially, property LPAs can be used whilst the Donor still has capacity. Welfare LPAs cannot. The latter can only be used when the Donor has lost capacity. Both kinds have to be registered with the Office of Public Guardianship (the administrative arm of the Court of Protection) before they can be used.
An interesting ‘twist’ on LPAs is that they need to include a certificate by a ‘prescribed person’ that in his opinion at the time when the Donor executes the instrument the Donor understood the purpose of the scope of the instrument, that no fraud or undue pressure is being used and that there is nothing else to prevent an LPA being created. A ‘prescribed person’ is someone who has known the Donor personally for at least two years OR is one of the following:
- A registered healthcare professional
- A registered social worker
- A barrister, solicitor or advocate
- An independent Mental Capacity Advocate
It cannot be:
- A family member of the Donor
- A donee of that power
- A donee of any other LPA or EPA made by the Donor (whether or not revoked)
- A family member of the Donee
- A director or employee of a trust corporation acting as a donee
- A business partner or employee of the Donor or the Donee
- An owner, director, manager or employee of any care home in which the Donee is living where the LPA is signed by a family member of any such person
Who must be notified
Donors must either:-
- Nominate up to 5 people who are to be notified or
- Confirm that no one is to be notified (in which case the statutory certificate must be given by two people).
Extent of Welfare Powers
The Code of Practice is not exclusive but does give the following examples:-
- Where the donor should live and with whom
- 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 the provision of community care services
- Whether the Donor should take part in social activities, leisure activities, education and 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
A welfare LPA will permit a donee to make all the decisions listed above. The Donor may specify or exclude certain powers. It can also be revoked provided the Donor has capacity to do so.
Restrictions on Deputies
‘Best interest’ is to be distinguished from ‘benefit’. Thus a carer Donee might want to arrange for a Donor to go into a care home to give the carer a rest. Such a step might not be for the Donor’s benefit (the change of routine might be unsettling) but it would clearly be in the Donor’s best interest for the carer to have a break.
There are a number of factors to be ignored or taken into account in decision making which include the following:
- Age, appearance and certain aspects of behaviour which might lead to discrimination are to be ignored
- The extent to which the Donee can participate in the decision (is this only ever applicable to financial powers?)
- Where the decision relates to life sustaining treatment the decision maker must not, in considering whether the treatment is in the Donor’s best interests, be motivated by a desire to bring about the Donor’s death. ‘Life sustaining treatment’ means treatment which in the view of a person providing healthcare for the person concerned is necessary to sustain life.
Effects on Doctors
- Has my patient made an LPA?
- What does the LPA say and how will it affect treatment of my patient?
- Assessments of Capacity?
- What if I am asked to be Certificate Provider?
- Should I encourage patients to make LPAs?