Introduced in 2007, Lasting Powers of Attorney (LPA) have been around for some time now. They are a legal tool which enables a person (the donor) to appoint someone (the attorney) to make decisions on their behalf should the donor become or start to become mentally incapable of making those decisions in the future.
While many people are aware of the Property and Financial Affairs LPA, which is very similar in effect to the old Enduring Power of Attorney, very few people are aware of the Health and Welfare LPA or appreciate the importance of having a Health and Welfare LPA in place.
A Health and Welfare LPA enables the donor to appoint an attorney to make decisions about their medical treatment and general welfare at a time when they will be unable to make those decisions themselves. This includes making decisions about the donor’s day to day care. Those decisions could include whether they are cared for at home or whether they move to a care home; which care home should be chosen; what the donor should eat; who can visit them; what medical treatment should be given and, if specifically authorised by the donor, the giving or refusing life-sustaining treatment.
A House of Lords Select Committee has highlighted that Health and Welfare LPAs should be seen as a priority, particularly in light of our ageing population. However, as decisions regarding care and medical treatment can be made without an LPA, many people do not see the need for putting a Health and Welfare LPA in place. People are also under the mistaken impression that their next of kin can make decisions on their behalf should they become incapable of making those decisions themselves.
The next of kin myth
The concept of “next of kin” is a legal myth. It has no legal meaning. So, if a person is named or chosen to be a next of kin, for example, when an elderly relative is taken into hospital, they do not automatically assume any kind of responsibilities in the eyes of the law. Therefore, even in the most involved and loving families, family members can be excluded from key decisions where a person is unable to make decisions themselves. Also, as no one person has the authority to make decisions, the risk of conflict can be increased when not everyone agrees with the decisions being made.
The donor of a Health and Welfare LPA can control decisions made on their behalf by appointing the people whom they trust to make those decisions and, if appropriate, setting out how those people should act by including conditions, restrictions and guidance.
In practice, an attorney under a Health and Welfare LPA is unlikely to be the sole decision maker as other people such as health and social care workers will make care and treatment decisions which they believe are in the donor’s best interests, in consultation with the attorney.
However, if the attorney is not in agreement with what is proposed, those providing care and treatment may not be protected from liability under the law and, therefore, should not give the proposed care and treatment.
The attorney’s authority
The attorney is only authorised to make decisions which the donor could make if they had the necessary capacity. Therefore, an attorney cannot force a doctor to give the donor a particular treatment. However, if a doctor is of the view that a particular treatment should be given to the donor but the attorney disagrees, then the attorney can refuse consent and the treatment cannot be given.
For example, take the case of a donor suffering from prostate cancer as well as from another life-threatening illness for which treatment is being given. A doctor wants to give the donor a hormone injection for the prostate cancer which will not help to improve the quality of life of the donor or treat the other life-threatening illness. In those circumstances, an attorney under a Health and Welfare LPA can refuse consent for the hormone injection and the doctor cannot then administer the injection to the donor
Many people have very clear views about the type of treatment, if any, that they would like to receive should they become unable to make those decisions themselves and, in particular, if there is no possibility of them surviving the treatment. It is therefore vital to have a Health and Welfare LPA in place so that a chosen attorney can make those decisions on the donor’s behalf and in accordance with their wishes.