Lasting Power of Attorney for Health and Welfare Decisions

A person giving a Lasting Power of Attorney (the donor) can confer on an Attorney or Attorney’s (the donee(s)) authoirty to make decisions about the donor’s personal welfare or specified matters concerning the donor’s personal welfare.

The term ‘personal welfare’ is not defined in the governing statute but it is made clear that authority to make decisons about the donor’s personal welfare extends to giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care. This type of Lasting Power of Attorney therefore covers both welfare and healthcare decisions. In certain circumstances, the attorney’s authority may even extend to giving or refusing consent to life -sustaining treatment.

Examples of decisons which can be made include:-

• where the donor lives and who they should live with
• the donor’s day-to-day care, including diet and dress
• whom the donor should have contact with
• consenting to or refusing medical examination and treatment on the donor’s behalf
• arrangements needed for the donor to be given medical, dental or optical treatment
• assessments for and provision of community care services
• whether the donot should take part in social activities, leisure activities, education or training
• the donor’s personal correspondance and papers
• rights of access to personal information about the donor
• complaints about the donor’s care or treatment

Life-sustaining treatment

The donor must decide whether or not to give his or her attorney authory to give or refuse consent to life-sustaining treatment. Life-sustaining treatment is defined as treatment, in the view of the person providing health care, is necessary to sustain life. It is not yet clear what is included by this definition other than it does not grant the attorney authority to demand a particular medical treatment nor does it authorise euthenasia. As with all decisions an attorney msut act in the donor’s best interests when making decisons about life-sustaining treatment.

Attorney’s powers

A Lasting Power of Attorney for Health and Welfare made after an advance decision to refuse medical treatment will take precedence over any refusal of consent in that advance decision

An attorney may apply to the Court of Protection for the exercise of any of the court’s powers without seeking prior permission.

Carers and health professionals or any other person performing acts in connection with the perosnal and health care or treatment of a person lacking capacity will not be protected from legal liability if their actions conflict with the decision of an attorney under a Lasting Power of Attorney for Health and Welfare.

Limits on attorney’s powers

• An attorney has not power to make a decision under a Lasting Power of Attorney for Health and Welfare if the donor has the mental capacity to make their own decisions
• If the donor has previously made an advance decision to refuse a proposed treatment (and the Lasting Power of Attorney for Health and Welfare does not grant the Attorney the right to give or refuse life-sustaining treatment) then the attorney will not have the right to act in decisions relating to that treatment.
• If the Lasting Power of Attorney for Health and Welfare does not grant the Attorney the right to give or refuse life-sustaining treatment then they will not have authority to do so.
• An attorney does not have authority to make decisions in relation to a donor who is detained under the Mental Health Act 1983 as amended.
• The attorney cannot make decisions in relation to matters not relating to the health and welfare of the donor.
• A Lasting Power of Attorney for Health and Welfare does not authorise the attorney to restrain the donor except in certain circumstances.
• The attorney’s powers can be further restricted by the terms of the Lasting Power of Attorney for Health and Welfare itself.
• A trust corporation cannot be appointed as an attorney under a Lasting Power of Attorney for Health and Welfare.

The prescribed form

The instrument granting the power of attorney must be in the prescribed form to be valid.

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