Make sure you are clear of the powers granted to you
If you are an attorney for health and welfare decisions (as opposed to financial decisions), it is important to make sure that you are clear about exactly what decision making powers have been granted to you. This will ensure you can work with medical staff in the continuing best interests of your loved one if they become unwell.
A health and welfare lasting power of attorney (LPA) allows attorneys to make decisions about medical care, however there may still be some medical decisions which remain outside of your remit.
You may find that the health and welfare power of attorney includes very little detail, or it may go into a great deal of detail about the type of decisions your loved one was happy to grant you authority over.
It is important that a decision does not flout any existing law. For example an attorney cannot be granted authority for euthanasia, which is currently illegal in England and Wales.
What decisions does a health and welfare attorney typically make?
Most commonly, a health and welfare attorney can make any decision about the care of the person for whom they have been appointed. This may include specific medical treatment, the type of care the person should receive, where and how their care should take place, the person’s daily routine and their diet, and other day-to-day decisions.
Such guidance could either direct you to make certain decisions or prevent you from making certain decisions. For example, some people may ask to be cared for in their own home, while some people may wish to refuse a blood transfusion.
If you are an attorney for someone whose health and welfare LPA contains guidance or instructions, you should obtain legal advice prior to making any decisions on that person’s behalf to ensure that you are not overstepping your authority, which could see you removed as an attorney by the Court of Protection.
Decisions about life-sustaining treatment
When making a health and welfare LPA, the person doing so must choose whether to allow their attorney to consent to or refuse life sustaining treatment. This does not document their own decision about whether life sustaining treatment should take place, but rather who should make that decision if it becomes necessary:
- their attorney – if they have opted for you to make the decision, hopefully they discussed their own preferences with you, but it will be for you to decide what is for the best; or
- medical staff – if they have not authorised you to make decisions about life sustaining treatment, then this will be a decision for the medical professionals involved in your loved one’s care.
Why might medical staff go against your decisions?
The most common reason for medical staff going against the wishes of an attorney is because the health and welfare LPA does not give you the requisite authority to make the decision at hand. This may relate to life sustaining treatment, or it may be that your decision making has been restricted by some specific instruction.
If you have not been authorised to make a certain decision, medical staff should still consider your views and wishes but, ultimately, the best interests of your loved one will be their key concern. They may conclude that a different decision is in your loved one’s best interests.
If your loved one made an advanced decision (colloquially referred to as a ‘living will’) after the date of their health and welfare lasting power of attorney, the advanced decision will take precedence. As such, you would no longer have authority for the specific decision referred to in the advanced decision. Advanced decisions are no longer widely used and are limited in their scope, only allowing for the refusal of treatment, and require rather specific details about the type of treatment that is to be refused.
While a health and welfare LPA does grant you authority to make medical decisions on another’s behalf, you will always be bound by the various provisions of the Mental Capacity Act 2005. The overriding provision is to act in the best interests of the person for whom you are making decisions. If a doctor does not believe you are doing so, or they have reason to believe that you are contravening the Mental Capacity Act in any other way, they can challenge your decision and bring the matter before the Court of Protection.
What can you do if medical staff go against your decision?
You should always seek legal advice before taking any other course of action, to ensure that your understanding of the LPA and your authority under it are correct.
If, having sought legal advice, you remain concerned about the medical staff’s dismissal of your decision, you should arrange a meeting with them to discuss the issue. A solicitor can assist you with any correspondence or by attending the meeting with you.
Should the medical staff continue to go against your decision, despite legal advice and having met with you, you are entitled to obtain a second opinion from another doctor.
The final and most serious step to take would be to raise your concerns with the Court of Protection by way of an application asking for the court’s intervention and interpretation. This can be a lengthy process and it is also a costly one, so is best avoided if earlier resolution is possible. Before entering into any Court of Protection proceedings, you should instruct a solicitor to ensure that your application is valid, thorough, and legally accurate. The court would not look kindly upon you if you were deemed to have brought an expensive and time-consuming legal battle unnecessarily.
How we can help
A health and welfare LPA might seem to give you authority to make any decision on your loved one’s behalf, but there may be limits to this.
Our solicitors can help you to ensure that you fully understand your authority, how far this may extend, and what you can do if medical staff fail to honour your decisions.
For further information, please contact Paddy Appleton in the Wills, Trusts and Probate team on 01832 275506 or email [email protected].
Paddy Appleton LLB, Senior Partner
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