Why Grant a Power of Attorney?

If you have a loved-one or friend entering old age do suggest to them it is worth doing a lasting power of attorney (LPA). None of us likes thinking about a time when we may no longer have capacity to make decisions for ourselves about our healthcare or finances but failure to appoint attorneys can result in huge stress and costs for family of next of kin tasked with looking after us. Anyone who has had to look after a parent in their final years, will know how stressful and distressing it can be – if they lose capacity with no LPA in place, such stress can be made much, much worse.

Here is one example of how things can go wrong. Mrs B a fit and active 85 year old has recently been diagnosed with vascular dementia. She lives happily on her own in the house where she has lived for many years and where she raised her 3 children. She has always said she would like to remain at home and be cared for there for as long as possible. Unfortunately she has not granted any LPA. One day she has a fall and breaks her hip. She goes into hospital and after a few weeks is keen to come home. The family ask the doctors about when their mother can come home. The hospital has a meeting and the consultant, psychologist, dementia nurse, occupational therapist, safeguarding team and mental health team all agree Mrs B is not able to make decisions for herself and it is in her best interests, not go home, but instead go to a residential care home. What would you do? Such a conflict of views can give rise to very strong feelings and severe stress for family members. To understand what you can do it is helpful to have some understanding of relevant law. (Note any dispute can quickly get into fairly complex legal territory so specialist advice from an expert at an early stage is highly recommended).

What Happen’s When We Lose Capacity?

The Mental Capacity Act 2005 creates these safeguards:-

1. Every adult has the right to make decisions for themselves. It must be assumed that they are able to make their own decisions, unless it has been shown otherwise.
2. Every adult has the right to be supported to make their own decisions. All reasonable help and support should be given to assist a person to make their own decisions and communicate those decisions, before it can be assumed that they have lost capacity.
3. Every adult has the right to make decisions that may appear to be unwise or strange to others.
4. If a person lacks capacity, any decisions taken on their behalf must be in their best interests.
5. If a person lacks capacity, any decisions taken on their behalf must be the option least restrictive to their rights and freedoms.

Where someone lacks capacity the Act specifies who can make decisions on their behalf:-

* Everyday decisions about washing, dressing, eating or activities – whoever is with the person at the time can make these decisions, eg the carer, family or care worker;
* Decisions about the person’s finances or property – their attorney or deputy for property and financial affairs will make these decisions;
* Decisions about where the person will live and receive care – if they have an attorney or deputy for health and welfare, they can make the decision, if not, a professional such as a social worker or doctor will make the decision;
* Decisions relating to life-sustaining treatment – if the person appointed an attorney for health and welfare and gave them this power then they may be able to make the decision, if not then it will be an appropriate doctor or consultant.

Any decision made must always be made in the person’s best interests. It should never be made in the best interests of the person making the decision. For example, it should never be made to make things easier for the carer or professionals involved.

What is the Benefit of a Lasting Power Attorney?

Generally, where an LPA has been granted the attorney can make decisions about anything to do with the donor’s health and personal welfare. This includes decisions about medical treatment, where the donor is cared for and the type of care they’ll receive, as well as day-to-day things like their diet, how they dress and their daily routine.

However in order to give consent or refuse life-sustaining treatment, the attorney must have been given permission to make these decisions when the LPA was made. There might also be instructions in the LPA form that the attorney must follow. The decisions an attorney makes must also be in the best interests of the person they’re representing. This means that they should consider:

* whether the person has capacity to make the decision for themselves, and if they don’t, whether they’re likely to regain capacity to make treatment and care decisions in future
* any wishes the person has previously expressed about their treatment or care and any relevant values or beliefs the person has

What happens if the Doctors Disagree?

There are a few reasons why a doctor may not follow an attorney’s decisions:
* They may believe that the attorney isn’t acting in the person’s best interests.
* The attorney may not have been given the authority to make a particular decision.
* Sometimes a donor’s Advance Decision (eg Living Will) may override an LPA.

If your loved one made an Advance Decision after you were appointed as their attorney, you can’t override the decisions made in their Advance Decision. However, if a decision needs to be made about something that they haven’t detailed in their Advance Decision, then you’ll still be able to act on their behalf.

If the doctor doesn’t follow an attorney’s decisions
If the doctor in charge of your loved one’s care doesn’t follow your decisions as an attorney, ask for a meeting with them. At this meeting you should explain your decision and discuss their reasons for disagreeing.If you and the doctor still disagree about which treatment is in your loved one’s best interests, you can ask for a second opinion or involve an advocate. If this doesn’t work you can make a formal complaint to the hospital or care provider about the doctor. You can also speak to a solicitor.
If you’re still unable to settle the disagreement you can apply to the Court of Protection to make a decision. There are emergency procedures so that urgent cases can be dealt with quickly.

What happens if there needs to be a Restriction on Liberty?

The Act also deals with situations where it is felt necessary to restrict the liberty of someone without capacity to protect them from harm. One example would be where a person living with dementia has broken his ankle but keeps on getting out of bed and walking on it before the bone has healed. The Act applies where there is a restriction of liberty which is defined as where the person is “under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements”.

If a care home or hospital plans to deprive a person of their liberty they must get permission. To do this, they must follow strict processes called the Deprivation of Liberty Safeguards (DoLS). DoLS are a set of checks that are designed to ensure that a person who is deprived of their liberty is protected, and that this course of action is both appropriate and in the person’s best interests. In these circumstances the hospital or care home proposing the restriction has to apply to the local authority for an assessment known as a DoLS Assessment (Deprivation of Liberty Safeguards). The local authority appoints the assessor who is usually a qualified social worker, nurse, occupational therapist or chartered psychologist.

The DoLS process offers protection to ensure that, when someone’s freedom is restricted, it is both in their best interests and, where possible, done in the least restrictive way. The key elements of these safeguards are:
* to provide the person with a representative – a person who is given certain rights and who should look out for and monitor the person receiving care
* to give the person (or their representative) the right to challenge a deprivation of liberty through the Court of Protection
* to provide a mechanism for a deprivation of liberty to be reviewed and monitored regularly

There are six parts to the DoLS assessment. The assessors job is to decide whether the person and the care that they receive meet the criteria for authorisation. The six parts are as follows:

* Age – Is the person aged 18 years or over?
* Mental health – Does the person have a ‘mental disorder’?
* Mental capacity – Does the person lack ‘capacity’ (the ability) to make their own decisions about treatment or care in the place that is applying for the authorisation?
* Best interests – Is a deprivation of liberty taking place? If so, is it:
– in the person’s best interests?
– needed to keep the person safe from harm?
– a reasonable response to the likelihood of the person suffering harm (including whether there are any less restrictive options and if they are more appropriate)?
* Eligibility – Is the person already liable to detention under the Mental Health Act 1983, or would they meet the requirements for detention under this Act?
* No refusals – Does the authorisation contradict or conflict with any advance decision the person has made refusing treatment, or with any decisions made by, for example, a court-appointed deputy or someone with Lasting power of attorney?