Who will make decisions for you if you fall ill?

Health and Care LPA
With the onset of Coronavirus (COVID-19), the UK has been plunged head first into one of the most difficult challenges it has ever faced in modern times. Against a background of increasingly ominous mathematical predictions, the Government’s instructions to the public are changing at breakneck speed. People need to hope for the best and prepare for the worst.

At challenging times like these, it is extremely difficult to have the courage to put one’s affairs in order. This can feel tantamount to accepting that the worst will happen. But the reality is far from that. Having the proper legal documents in place is simply good planning. It ensures that should you fall ill, those who care for you can ensure your treatment is managed in accordance with your wishes, and in addition they can properly manage your financial affairs.

All adults in England and Wales should have three legal documents in place: a Will, a Finance and Property Lasting Power of Attorney, and a Heath and Care Lasting Power of Attorney. This article focuses on the Health and Care Lasting Power of Attorney (LPA), explaining what this is and what decisions it covers.

We understand that our clients will be reluctant to travel to us or to receive visitors at this difficult time. We can assist you with making LPAs (and Wills, if you choose) via a video meeting. All remaining work can be carried out through the post. If you would like to arrange a Direct Appointment, please call our office team on 0800 788 0500.

What is a Lasting Power of Attorney?

With a Lasting Power of Attorney (LPA), you can choose one or more people to act on your behalf, should you lose the mental capacity to make decisions. You cannot rely on an ordinary Power of Attorney as this becomes invalid once you lose capacity.

LPAs were introduced by the Mental Capacity Act 2005 which came into force on 1 October 2007. They replaced Enduring Powers of Attorney (EPAs) although EPAs made before 1 October 2007 are still usable once registered.

There are two types of LPA: one covering finance and property decisions, and the other covering health and care decisions. Every adult should have both.

Without these essential documents, joint bank accounts can be frozen and spouses/civil partners can find themselves with practically no power to assist in financial matters.

The only way forward when someone loses capacity is to apply to the Court of Protection for a Deputyship Order. Such orders are expensive and time consuming to obtain, and in the case of health Powers of Attorney, the court can be reluctant to grant them.

It is unsurprising that an increasing number of people are taking the important step of nominating an attorney to handle their affairs in the event that they cannot.

What is a Health and Care LPA?

A Health and Care LPA allows someone you trust to make decisions for you as to your health and care. Unlike a Finance LPA which can be used with your permission once registered, a Health and Care LPA can only be used once you lose capacity. Anyone aged 18 or over can – and should – make this important document. .

Who can be a Health and Care Attorney?

Anyone aged 18 or over can be a Health and Care Attorney, provided that they themselves have mental capacity. However, you need to choose someone that you trust to act in your best interests. You should also consider whether your choice of Attorney has the necessary skills to perform the duties that may be required of them.

You can appoint your spouse or civil partner as an Attorney, and you can choose additional attorneys to act with them. In all cases, you must name specific people rather than, say, a firm of solicitors.

How will my attorneys act for me?

You can choose to appoint just one attorney or multiple. If you appoint more than one, you can choose how the attorneys should act for you. It may be that you want them to act:

  • Jointly
  • Jointly and severally
  • Jointly in relation to some decisions, severally in relation to others

If you appoint attorneys to act jointly, they will have to agree on all matters and act together. This can be an issue where an urgent decision is needed, particularly if not all of the attorneys can be reached. It can also be an issue if they cannot agree! Further, if one of the attorneys can no longer act then none of them can act. You can appoint a replacement but the replacement will replace all of the original attorneys. This can be mitigated by including a provision in the LPA which reappoints the remaining joint attorney to act alone, should the other become unable to act.

Alternatively you can specify that the attorneys may act ‘jointly and severally’. This means that they can act together if they want to, but they can also make decisions individually and these will still be valid. If one of the attorneys becomes unable to act, the others can continue.

The final option is to specify that the attorneys must act jointly on some matters and severally on others. If this is your choice, you will need to set out clearly which matters must be made jointly. You might for example decide that they must make decisions on consent to medical treatment jointly, but that they can make decisions as to what you eat or who you see severally.

You may also add a requirement into the LPA that your attorney must obtain the consent of a third party before acting in relation to a particular matter.

What sort of decisions does the Health and Care LPA cover?

With a Health and Care LPA, your attorneys can make decisions that relate to your ‘personal welfare’. Whilst this isn’t specifically defined in the Mental Capacity Act, the Code of Practice suggests that such decisions might include:

  • where you (the “donor”) should live and who you should live with
  • your day-to-day care, including diet and dress
  • who you may have contact with
  • consenting to or refusing medical examination and treatment on your behalf
  • arrangements needed for you to be given medical, dental or optical treatment
  • assessments for and provision of community care services
  • whether you should take part in social activities, leisure activities, education or training
  • your personal correspondence and papers
  • rights of access to personal information about you, or
  • complaints about your care or treatment (Source: Mental Capacity Act 2005 Code of Practice).

The list is not intended to be exhaustive.

How do Attorneys make a decision?

The decision making process is not simply about the Attorney doing what the Attorney thinks is best. There are a number of steps the Attorney must take before making any decision for you.

  • Encourage participation: Your attorneys must do whatever is possible to permit and encourage you to take part, or to improve your ability to take part, in making the decision.
  • Identify all relevant circumstances: Your attorneys must try to identify all the things that you would take into account if you were making the decision or acting for yourself.
  • Find out your views: Your attorneys must try to find out your views, including:
    • your past and present wishes and feelings which may have been expressed verbally, in writing or through behaviour or habits;
    • any beliefs and values (e.g. religious, cultural, moral or political) that would be likely to influence the decision in question; and
    • any other factors that you would be likely to consider if  you were making the decision or acting for yourself.
  • Avoid discrimination: Your attorneys must not make assumptions about your best interests simply on the basis of your age, appearance, condition or behaviour.
  • Assess whether you might regain capacity: Your attorneys must consider whether you are likely to regain capacity (e.g. after receiving medical treatment). If so, can the decision wait until then?
  • If the decision concerns life-sustaining treatment: Your attorneys must not be motivated in any way by a desire to bring about your death. They should not make assumptions about your quality of life.
  • Consult others: Your attorneys must, where it is practical and appropriate to do so, consult other people for their views about your best interests and to see if they have any information about your wishes and feelings, beliefs and values. In particular, your attorneys should try to consult:
    • anyone previously named by you as someone to be consulted on either the decision in question or on similar issues;
    • anyone engaged in caring for you;
    • close relatives, friends or others who take an interest in your welfare;
    • any attorney appointed under a Lasting Power of Attorney or Enduring Power of Attorney made you (for example, a Finance LPA); and
    • any deputy appointed by the Court of Protection to make decisions for you.
  • Avoid restricting your rights: Your attorneys must look for other options that may be less restrictive of your rights (Source: Mental Capacity Act 2005 Code of Practice).

NB. For decisions about major medical treatment or where you should live and where there is no-one who fits into any of the above categories of people to consult, an Independent Mental Capacity Advocate (IMCA) must be consulted.

So before making any decision, your attorneys must weigh up all of the above factors and work out what is in your best interests based on this information. This list is not intended to be exhaustive.

In addition, you can specify in the preferences section of the LPA what matters your attorneys should take into consideration when making particular decisions.

How do attorneys decide regarding life-sustaining treatment?

Life-sustaining treatment is treatment necessary to sustain your life, in the opinion of a doctor. It would include, for example, major surgery – but it would also include for example a course of antibiotics to treat pneumonia, or artificial feeding/hydration. The key point to distinguish this treatment is simply whether it is needed to keep you alive.

The LPA allows you to specify whether your attorneys will have authority to give or refuse consent for life sustaining treatment on your behalf.

If you decide they should not have that authority, such decisions will be made by the doctor or health care professional treating you. You can alternatively make an Advance Decision to accompany your LPA, which goes into a little more detail about the types of treatment you might want to refuse. However, you must take care that the Advance Decision does not conflict with the LPA.

Placing limits on your attorneys

You can limit your attorneys from acting a particular way by including instructions on your LPA. Instructions might include, for example:

  • A duty to consult with a third party before making a particular decision.
  • Limits to the attorney’s power – for example, they may not make decisions about X, Y and Z.

These need to be worded clearly and carefully. If you include instructions that are complex or simply cannot be done, it may be necessary for the Office of the Public Guardian to refer the LPA to the Court of Protection for the Court to consider cancelling the instruction. If it is too difficult to phrase something very simply, it may be better to put this in the non-binding preferences section instead.

In addition to any limits you may impose, there are statutory restrictions limiting what your attorneys can make decisions about. For example, they cannot consent to marriage for you, or to treatment for a mental disorder where this is regulated by the Mental Health Act 1983 Part 4.

If you would like to arrange a Direct Appointment to discuss making a Lasting Power of Attorney, please call our office team on 0800 788 0500.

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