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Power of attorney

22 April 2016

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Capacity, lasting powers of attorney and the Court of Protection – what GPs and practice managers need to know

We all want to manage our own affairs, but it is worth considering what we would do should we become unable to do so. Ideally, individuals would consider the implications and make contingency plans while still young and fit, but inevitably, many people put off this decision until they are elderly, and often until concerns about their capacity have already arisen.

Lasting powers of attorney
Since 1 October 2007 the answer for those wishing to prepare for future incapacity has been to make lasting powers of attorney (LPAs). There are two types of LPA: one for health and welfare and one for property and financial affairs. The health and welfare LPA allows attorneys to make decisions about medical treatment, moving into a care home and day-to-day living decisions, such as diet and dress. The property and financial affairs LPA allows attorneys to make payments, sell property on the donor’s behalf and deal with taxes and benefits. Prior to the introduction of LPAs it was possible to make enduring powers of attorney, which were similar to LPAs for property and financial affairs.
The way LPAs work is that an individual – known as a donor – chooses attorneys to act on their behalf if they lose capacity at some point in the future. Donors can choose one or more attorneys, as well as replacement attorney, who can step in if one or more of the original attorneys is unable to act. Attorneys can either be appointed to act jointly (which means they all have to agree to all the decisions made) but more usually they are appointed jointly and severally, which means they can make decisions alone if necessary. Typically an individual would appoint their spouse and children as attorneys, although if their affairs are complicated they may choose a professional, such as a solicitor.
Some patients may ask their GP to act as attorney in relation to a health and welfare LPA. While the British Medical Association’s (BMA) view1 is that there is nothing to prevent doctors taking such a role, the doctor in question should be aware of the potential for conflict of interest and the doctor acting as an attorney should not be involved in any initial assessment of the capacity of the individual to make a LPA.
LPAs are usually registered as soon as they have been completed. The property and financial affairs LPA can then be used immediately, even if the individual still has capacity (unless the donor decides against this) while the health and welfare LPA can only be used in relation to decisions that the donor cannot himself make.

Certificate providers
In order to make a valid LPA it is necessary for someone to provide a certificate confirming that the individual in question has the capacity to make an LPA. The certificate provider can either be a professional, such as a solicitor or doctor, or, alternatively someone who has known the donor personally for more than two years.
Many solicitors, if there is any doubt at all about a client’s capacity, will ask a medical practitioner to be the certificate provider. This is to guard against abuse and to ensure that the donor is entering into the LPA of his or her own free will and is not being coerced into doing so by family members. So, if a GP is asked by a patient, or by one of their relatives, to act as a certificate provider what should they bear in mind and what are the relevant legal tests?
It is important to understand that even if a person is far from the peak of their mental abilities they may still have the capacity to enter into an LPA. As section 1 of the Mental Capacity Act 2005 (see Resources) states:
l A person must be assumed to have capacity unless it is established that he lacks capacity (section 1(2)).
l A person is not to be treated as unable to make a decision unless all practicable steps to help him do so have been have been taken without success (section 1(3)).
The starting point for a GP asked to act as certificate provider is the Mental Capacity Act 2005, and more specifically section 2. The test for capacity, which applies only in relation to the Mental Capacity Act 2005, is set out in section 2(1): “For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”
In (section 2(2)) it says: “It does not matter whether the impairment or disturbance (referred to in the test for capacity) is permanent or temporary.”
Capacity to make LPAs was considered in the case of Re Collis2 where the judge, Denzil Lush, said: “Mental capacity is ‘issue-specific’. This means that the capacity required to create an LPA is not the same as the capacity to manage one’s property and financial affairs generally, or the capacity to make a will or a gift or a loan, or the capacity to decide on a certain course of medical treatment, or the capacity to decide whether to live in a residential care home.”
So if a patient appears in your surgery and asks the GP to act as certificate provider how should the GP decide whether they are capable of making an LPA?
Guidance provided by the Office of the Public Guardian3 suggests that the certificate provider should consider asking the donor questions such as the following, to establish that he understands:

  • What is your understanding of what an LPA is?
  • What are your reasons for making an LPA?
  • Why have you chosen me to be your certificate provider?
  • Who have you chosen to be your attorneys?
  • What powers are you giving them?

Often it is the relatives of the individual involved who are keen for them to make LPAs. A wife may want to be given the ability to manage her husband’s affairs, following a stroke for example. Similarly children may want to manage the affairs of an elderly parent, often when the parent has been widowed. However, it is vital that the GP remembers that the donor is the person giving instructions, and, it is his/her decision to make LPAs, regardless of what the family desires.  
The GP should therefore ensure that they spend some time alone with the donor, making the relatives wait outside if necessary. This is where an experienced practice manager can be particularly helpful. They can reassure the relatives that the GP is obliged to take instructions directly from the patient and can alert the GP to any signs from the relatives that they may be using coercion or undue influence to persuade the individual to make LPAs against their will.
If a GP has any doubts about the individual’s wish to enter into an LPA they should refuse to act. Detailed notes should always be kept of any meetings.

How health and welfare LPAs work in practice
Once it has been registered, a health and welfare LPA cannot be used until such time as the donor has lost capacity, and, as capacity is decision specific, this means that there may be situations where the attorney can make some decisions for the donor, and others where they cannot.
Before accepting instructions from the attorney the GP or practice manager should obtain a copy of the LPA to ascertain the extent of the attorney’s powers under the LPA. This can be obtained either directly from the Office of the Public Guardian or from the solicitor who acted in the preparation of the LPA. The GP should read the LPA carefully to ascertain whether there are any restrictions on how the donor can act. For example, one of the questions the donor must answer in the LPA for health and welfare is whether they want their attorney to make decisions about life-sustaining treatment.
In addition, if the donor has made a valid advance decision then this will take priority over the LPA unless the LPA was made after the advance decision and gives the attorney the right to consent or refuse the proposed treatment. When your surgery is dealing directly with an attorney it is important to consider each request from them individually. So, for example, if an attorney asks for the patient’s records the practice manager and/or GP must check that the health and welfare LPA is in force, the details of its provisions and must check that the patient lacks capacity before releasing the records. It may be possible to release just the relevant part of the patient’s records to the attorney.
It is important to remember as well that there are some decisions that the attorney cannot make. These include the refusal of medication prescribed under the Mental Health Act 1983. In addition, the attorney cannot insist on treatment that a doctor does not believe is in the patient’s best interest.
If practice managers or GPs have concerns about the actions of an attorney under an LPA or believes that the attorney is not acting in the best interests of the individual then the case can be referred to the Office of the Public Guardian.

When a patient lacks capacity
Even with best efforts to enable patients to make decisions themselves there will inevitably be cases where it is too late to make LPAs and that coming back on a different day, or trying to communicate using different methods is not going to help. This may be where the individual has deteriorated suddenly, for example following a stroke, or where they have been involved in an accident.
If this is the situation then no LPA can be made and decisions relating to the patient must be referred to the Court of Protection. The Court has the power to make a decision on behalf of a person lacking capacity (known as a protected person). The Court will sometimes appoint a deputy, who is an individual that can make decisions on behalf of the protected person.
It can be very difficult when faced with an individual’s relatives to have to explain that even if they are next of kin they do not automatically have the right to make decisions about the individual’s treatment. And while there is a good chance that they may be appointed deputy in relation to the protected person’s property and affairs, it is only very rarely that the Court of Protection appoints health and welfare deputies. This means that anyone who wants their loved ones to make decisions on their behalf, especially with regard to health and welfare should really make LPAs before it is too late to do so. l

Angharad Lynn, solicitor, Veale Wasbrough Vizards.

1 BMA Doctors acting as health and welfare attorneys for their patients –a guidance note, Ethics (accessed 19 March 2015).
2 An unreported case of the Court of Protection (27.10. 2010).
3 Assessment of Mental Capacity – The British Medical Association and the Law Society 3rd edition, editor Penny Letts.

The Mental Capacity Act 2005