Advice for Health and Welfare Attorneys

As a Health and Welfare Attorney, you will make decisions (or help the Donor to make decisions) for anything relating to their Health and Welfare. Below we have provided key guidance related to this position.

Lasting Power of Attorney

A Health and Welfare Lasting Power of Attorney (LPA) gives you the authority to make decisions about the Donor’s health and welfare if they lack capacity. You must read an LPA carefully as they can contain useful guidance and set out the limits on the decisions that Attorneys can make on behalf of the Donor.

These decisions can include:

• Where the Donor should live
• Who may have contact with the Donor
• Accessing health and social care information
• Consenting to or refusing consent to medical treatment
• Daily routine, for example washing, dressing, and eating
• Medical care

The Health and Welfare LPA does not give Attorneys authority to make financial decisions such as selling the Donor’s home or paying bills.

Attorneys must tell the people involved in the Donor’s care when they start to make decisions on behalf of the Donor. This would include the Donor’s:

• Friends and family
• Doctor and other healthcare professionals
• Care workers
• Social workers and other social care staff

Making decisions with others

Donors can make the decision that their Attorneys have to make decisions jointly, or jointly and severally. Making decisions jointly means that all the Attorneys must agree, whereas making decisions jointly and severally means that they can be made together by the Attorneys or by an Attorney on their own.

If the Attorney is appointed to act alongside another person, it may be that they have to:

• Deal with all matters together (jointly appointed)
• Act together or independently (jointly and severally)
• Make some decisions together and some independently (a hybrid appointment)

Following the Principals of the Mental Capacity Act 2005 and Code of Practice

When Attorneys make decisions, they must follow the Mental Capacity Act 2005 and regard its Code of Practice. This means that:

• The Attorney must assume that the Donor can make their own decisions unless it is established that they cannot do so because they lack mental capacity
• The Attorney must help the Donor to make as many of their own decisions as possible
• The Attorney must not treat the Donor as unable to make the decision in question unless all practicable steps to help them do so have been made without success
• The Attorney must not treat the Donor as unable to make the decision in question simply because the Donor wishes to make a decision the Attorney deems unwise

Before Attorneys make the decision in question or act for the Donor, they must consider whether they can make the decision or act in a way that is less restrictive of the Donor’s rights and freedom but still achieve the purpose.

What is mental capacity?

Having mental capacity means being able to make and communicate your own decisions. A person lacks capacity if they cannot understand information, remember that information long enough to make the decision, weigh up the information to make the decision, or communicate their decision.

The relevant information will vary depending on the nature of the decisions; however, the decision will typically include the nature, its purpose, the consequences and any options or alternatives.

The Attorney must support the Donor to make their own decisions as much as possible. If the Attorney forms a view that the Donor lacks capacity to make a particular decision at the time it needs making, then they can make that decision for them.

What are the Donor’s best interests?

If the Donor lacks the mental capacity to make a decision, then you must act in their best interests. The Attorney should:

• Consider all of the relevant circumstances, and in particular:
  • The likelihood of the Donor recovering in the foreseeable future and being able to make the decision in question
  • The Donor’s past and present wishes and feelings
  • The Donor’s beliefs and values that would be likely to influence their decision if they had the mental capacity; and
  • Any other facts that the Donor would be likely to consider if they were able to do so
• Involve the Donor in the decisions as far as is practical
• If appropriate, consult with anyone who has an interest in the Donor’s welfare
• If possible, to try and achieve the outcome that the Donor would want

Instructions and preferences

The Donor can include restrictions and preferences inside the LPA and it is important that the Attorney follows these as if the Attorney exceeds the authority that they are given from the LPA, they may be removed as an Attorney.

If the LPA restricts what the Attorney can and cannot do and the Attorney needs a wider authority to be able to act in the best interests of the Donor, then they should apply to the Court of Protection.

After the Attorney starts to act, they should consider:

• The instructions that the Donor included in the LPA
• Any preferences that the Donor has included in the LPA
• To help the Donor make their own decisions as much as they can
• Only make decisions that would be in the best interests of the Donor
• Respect the Donor’s human and civil rights

Working with health or social care professionals

Others may act in the Donor’s best interests if they lack the mental capacity to make decisions about health-related matters. For example, care workers may provide personal care services, and doctors and nurses may provide treatment. If it is appropriate, they may consult the Attorney with decisions they plan to make. They cannot make decisions the Attorney disagrees with.

Attorneys cannot demand certain medical treatment or care packages if those treating the Donor do not see it fit or think it is in the Donor’s best interests. This is because the Attorney only has the same rights that the Donor would have if they had mental capacity.

Making an end-of-life decision

The Attorney may have authority in the LPA to give or refuse consent to life sustaining treatment. This is treatment that those treating the donor deem necessary to maintain the Donor’s life.

The Attorney’s role is to either give consent or refuse consent to the treatment proposed, if they think it is in the Donor’s best interests.

Attorneys must make these decisions themselves; they cannot direct anyone else to make decisions for them in relation life sustaining treatment or end of life care. It would be best to prepare for decisions such as these by talking to the Donor so that the Attorney is ready to make decisions in their best interests. For example, ask about how they want to be cared for if they become seriously ill.

Reimbursement of personal expenses

As an Attorney, you are not allowed to be paid to act unless the Donor has specifically authorised this in the LPA. If there is no provision in the LPA, Attorneys can ask the Court of Protection to authorise payment.

Attorneys can recover reasonable out of pocket expenses, however, in most cases it is unlikely to exceed more than a few hundred pounds a year. Out of pocket expenses will include:

• Hiring a professional to do things such as fill in the Donor’s tax return form
• Travel costs
• Stationery
• Postage
• Phone calls

Best advice is to keep receipts relating to the above and invoice the Donor for the expenses. The money would then be paid by whoever is the Property & Finance Attorney from the Donor’s funds.

Rights to retire

The Lasting Power of Attorney ends when the Donor dies. This must be reported to the Office of the Public Guardian. However, Attorneys can choose to stop acting as an Attorney which is known as ‘Disclaiming’.

If the Attorney wishes to stop acting, they will need to disclaim their appointment. To do this they will be required to:

• Fill in and send the notification form known as LPA005 to:
  • The Donor if the LPA has not been registered
  • The Donor and the OPG if the LPA is registered
  • Any other Attorneys on the LPA

What happens when the Donor dies?

When the Donor dies, the Attorneys’ authority to act under the LPA ends. The death of the donor must be reported to the OPG, and the original LPA must be sent to the OPG so that they can cancel this.

We hope this guide has been helpful. Should you require any further advice please do not hesitate to contact our team for help.