Why health and care lasting powers of attorney matter

15 March, 2017

Health and care lasting powers of attorney (LPAs) are becoming increasingly common and so it is important that healthcare professionals know what the document does and how this affects the relationship with the patient.

An LPA gives authority to an attorney to make decisions on behalf of the patient. There are two types: financial decisions, and health and care.

Health and care LPAs enable the attorney to make decisions relating to general welfare, such as where the patient lives and how they spend their time. They also cover decisions regarding medical treatment, including consenting to or refusing life-sustaining treatment if specifically permitted in the LPA. If not, this decision lies with medical professionals.

Firstly, it must be confirmed that the patient has lost mental capacity to make the particular decision using the principles under the Mental Capacity Act 2005 – if there is any doubt a solicitor should be consulted. Once it is established the patient lacks mental capacity, then enquiries should be made as to whether there is an LPA.

If there is none, healthcare staff, carers and social staff can carry out certain personal care tasks without fear of liability, if they are in the patient’s best interests.

If there is an LPA, a request should be made to see it. It is valid if it is created by an adult with the necessary mental capacity and has been registered with the Office of the Public Guardian. It should also be confirmed the LPA does not apply to financial decisions only.

Next, consideration needs to be given to the person who has been appointed as an attorney as this person has legal authority to be involved in decisions. If more than one attorney is appointed, it needs to be established whether they must make decisions together (‘jointly’), or can do so independently (‘jointly and severally’). If jointly, confirmation must be obtained from each of the attorneys that they agree on the course of action.

If it is suspected that an attorney may be misusing an LPA, the Safeguarding Unit of the Office of the Public Guardian should be informed. The police should also be contacted if there is any suspicion of psychological, physical or sexual abuse, theft or fraud. It may also be necessary to refer the matter to the local authority adult protection unit.

Attorneys have a duty to act in the patient’s best interests at all times. This involves consulting with family, friends and anyone engaged in the patient’s care. In addition, the attorney should take into consideration any past wishes.

An LPA is an extremely important document. Everyone should have one because no-one knows if or when they may lose capacity. If patients are including any non-standard provisions in the LPA, it is important these are well drafted to avoid ambiguity and disputes at an already distressing time.

For more information contact Jessica Jamieson at jessica.jamieson@cripps.co.uk or call her on +44 (0)1892 506 019. If you need advice in relation to other aspects of healthcare law, please speak to Justin Cumberlege on +44 (0)1732 224 107 or email him at justin.cumberlege@cripps.co.uk.

 

First seen in Practice Management.