Your Role as a Health and Care Lasting Power of Attorney – FAQs

Health and Care Lasting Power of Attorney – FAQs

What is a Health and Care Lasting Power of Attorney?

A document (commonly known as an LPA) by which someone (the Donor) gives you (the Attorney) authority to deal with their health and care decisions when the Donor is no longer able to make those decisions.

When do I need to act as an Attorney?

  • The LPA cannot be used until it is registered with the Office of the Public Guardian (OPG) AND the donor no longer has capacity to make the particular health and welfare decision for himself.
  • It is important to note that you have no power to make decisions on behalf of the Donor until the LPA has been registered.  If you do not start acting on a registered LPA for some time, we would suggest you tell the Court when you do start acting so they can send you up to date information at that time.

What can I do as an Attorney?

Generally, subject to any restrictions in the LPA, your duties could include:

  • Deciding where the donor’s permanent place of residence should be;
  • Deciding what care and accommodation may be appropriate for the donor;
  • Consenting to any medical treatment or procedural therapy of whatever nature for the donor’s benefit and providing access to all that or refusing such consent;
  • Deciding alone or with others on the level of care which the donor may require;
  • Making decisions about the donor’s dress, diet and personal appearance as appropriate;
  • Choosing the donor’s social and cultural activities;
  • Arranging for the donor to undertake work, education or training;
  • Taking the donor on holiday or authorising someone else to do so;
  • Consenting to the donor being involved in certain types of research which meets the
  •  strict rules set out by the Mental Capacity Act 2005.

Life sustaining treatment means making decisions about whether or not to withdraw treatments including artificial nutrition or hydration in situations where that treatment has become burdensome or is not effective.  Whether you have the right to make life sustaining decisions will depend on whether this permission has been given in the LPA.

When making decisions as an Attorney what should I consider?

  • As Attorney you have important duties and responsibilities which are laid down in the Mental Capacity Act 2005 and explained in the Code of Practice.
  • As an Attorney you need to become familiar with the rather lengthy Code of Practice which can be accessed online at http://www.gov.uk
  • If you do not have internet access a hard copy can be obtained by calling The Stationery Office on 0333 202 5050, at a cost of £17.50 (in 2015).
  • You must follow the five principles set out in Section 1 of the Mental Capacity Act 2005.

These are:

Principle 1: It should be assumed that everyone has capacity to make their own decisions unless

it is proved otherwise

Principle 2:  A person should have all the help and support possible to make and communicate their

own decision before anyone assumes they lack capacity

Principle 3:  A person should not be treated as lacking capacity purely because their decision is unwise

Principle 4:  Actions or decisions carried out on behalf of someone who lacks capacity must be in their

best interests

Principle 5:  Actions or decisions carried out on behalf of someone who lacks capacity should not, as

far as possible, limit that person’s rights or freedom of action

  • You must always act in the best interests of the Donor. In general this will mean:

– Considering the Donor’s past and present wishes, feelings, beliefs and values

– Always confirming that the Donor does not have capacity to make this particular decision himself

– You will have duties to comply with any directions of the Court.  For further information you should consult the Code of Practice

How do I know if the Donor has capacity or not?

  • You should use the two stage test set out in the Act, namely:

Stage 1 – is the person suffering from a condition associated with dementia or the long term effects of brain damage?

Stage 2 – does this impairment mean the person cannot make this specific decision?

  • Further guidance and practical examples are set out in the Code of Practice.

Finally… keep a diary of your decisions in case the Court ask you to justify your actions.