What Is a Health & Welfare Lasting Power of Attorney (LPA) and Are Medical Staff Bound By It?

A Health & Welfare LPA gives authority to an attorney(s) in relation to the donor's (the person who has created the LPA) health and care in circumstances where they lack the capacity to make such decisions for themselves.

A Health and Welfare LPA can be used to make decisions about a number of issues, including the following:

• a donor’s daily routine, for example washing, dressing and eating;
• where the donor lives; and
• what medical treatment the donor should receive – and in some cases, whether the donor should receive life sustaining medical treatment or not.

Acting as an attorney under a Health & Welfare LPA

If you are an attorney under a Health & Welfare LPA, 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 & Welfare LPA allows attorneys to make decisions about medical care, however there may still be some medical decisions which remain outside of your remit.

The Health & Welfare LPA may include very little detail, or it may go into a lot of detail about the type of decisions you have authority over.

Such detail 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 & 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.

It is important that a decision does not go against any existing law. For example an attorney cannot be granted authority for euthanasia, which is illegal in England and Wales.

Decisions about life-sustaining treatment

When making a Health & Welfare LPA, the donor must choose whether to allow their attorney to consent to or refuse life sustaining treatment if they are unable to make that decision themselves. The Donor choses either:

• for their attorney to make that decision in which case, hopefully they had discussed their own preferences with you prior to loosing capacity, but it will be for you to decide what is for the best; o
• for the medical professionals in charge of their care to make that decision

Why might medical staff go against your decisions?

If a donor made an advance decision (also referred to as a ‘living will’) after the date of their Health & Welfare LPA, the advance decision will take precedence. As such, you would no longer have authority for the specific decision referred to in the advance decision. Advance 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.

If the attorney has not been authorised to make a certain decision, there is no effective advance directive and no other person has the power to make such a decision, medical staff will perform a “best interests” assessment. This would involve (if practicable) consulting with people involved in the care of the donor, amongst other things. It is of course possible that an attorney’s view may conflict with medical practitioners.

If a Health and Welfare LPA does grant an attorney authority to make medical decisions on another’s behalf, attorneys 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 donor. If a doctor does not believe an attorney is doing so, or that an attorney is 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?

If you are appointed as an attorney 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. For this, you would need specialist legal advice from our Court of Protection Team, as to the implications.

How we can help

Whilst some people find it awkward discussing these sensitive matters with family and friends, it is important to have these discussions to ensure that a person’s wishes are followed.

Please contact one of the members of our Private Client Department who would be happy to discuss LPAs with you, and how they may assist in the future.