We recently received an enquiry from a lady looking for guidance on her responsibilities as an Attorney. She was appointed by a relative some time ago (when they were in good health) but only now needs to exercise the Power of Attorney.
What is a Lasting Power of Attorney?
Would it surprise you to know that no one automatically has a right to deal with your property or financial affairs if you are unable to do so? Not your spouse, child or family member. But making a Lasting Power of Attorney enables you to decide who should deal with these matters on your behalf if you become incapable of managing them yourself. That person becomes the Attorney and you are the donor.
There are two types of Lasting Power of Attorney (LPA). LPA (Property and Financial Affairs) and LPA (Health and Welfare). As the title suggests, the former deals with property and affairs including signing cheques, selling property, entering into agreements on behalf of the donor, dealing with banks etc. The latter, and the one that we’ll focus on here, deals with health needs including whether to receive particular medical treatment, decisions about where the donor lives and their general welfare.
What are the duties of an Attorney?
You have a number of duties that are set down in law. These include:
- Acting in the best interests of the donor
- Making only those decisions the LPA gives you authority to make
- Not to take advantage of your position or to benefit yourself unlawfully
- Respecting the donor’s confidentiality.
- Consulting the donor about decisions when appropriate and to help them to make decisions for themselves.
What sort of decisions might a Health and Welfare Attorney need to make?
If you have been given this power, you may have to make a range of decisions for and on behalf of the donor:
- where they live
- whether a care or a nursing home is best for them, and which one
- whether they can continue to live at home with help from social services
You’ll be able to decide if the donor should:
- receive healthcare treatment
- not receive a particular healthcare treatment
- stop receiving a particular healthcare treatment
People who have a progressive illness sometimes make a decision about whether they want a particular treatment in the future. And they record this while they have “mental capacity”. If the donor made a decision to refuse future medical treatment (known as an advance decision) before losing capacity, you can’t, as Attorney, override their decision unless the LPA was made later and specifies that you have the power to do so.
What you can’t do as a Health and Welfare Attorney
It is important to note that a health and welfare LPA doesn’t come into force until the donor has lost the capacity to make decisions for themselves. There are some decisions you can’t make for another person as an Attorney. You can’t:
- refuse any medication prescribed by a responsible clinician if the donor has been sectioned or is on leave from hospital
- make decisions about where they should live if the donor is under a guardianship order
- make a decision about life-sustaining treatment without checking whether they made an advance decision about this
Personal welfare power of attorney and restraint
If you have personal welfare LPA, you may sometimes consider “restraining” (stopping or hindering) the donor from doing something you think will harm them or others. Under the law, you’re considered to be restraining someone if you:
- physically force them to do, or stop doing, something
- threaten to physically force them to do, or stop doing, something
- prevent them going somewhere or doing something they want to
- ask someone else to do any of the things listed above
You shouldn’t restrain the donor unless you believe:
- they don’t have the mental ability or capacity to make a decision about that particular issue
- it’s necessary to use restraint to prevent them harming themselves
- it’s a reasonable action to take because you believe they may suffer serious harm – for example, you could physically stop someone crossing the road if they were walking into traffic
Something for us all?
One last thing to consider is that Lasting Power of Attorney should not just be considered as an option for the elderly. Younger people can sometimes lose the ability to manage their affairs through illness or accident and it can be worth putting a LPA in place when you write a Will.
At Pishon Gold, we have many years of experience of LPAs and can also and answer any questions you may have. Whether about setting up the Power of Attorney or perhaps about your responsibilities and obligations as an Attorney. So, if we can be of assistance then please do get in touch.