Acting as a Health and Welfare Attorney
The first thing to understand about acting as a H&W attorney is that the attorney can only make decisions that the donor lacks capacity to make themselves and that is true for each big or little decision. So a person may know that they like chocolate but not be able to make a decision about a complex medical procedure, capacity is “time and decision specific”. This means that the donor may well be making some decisions about their life, but not others.
The next thing to understand is that when acting for someone who is found to lack capacity, the attorney must decide in their best interests. That’s not just an average person’s best interests who is a bit like them, but in that one individual person’s best interests and to do that, the attorney would need to know something about them. H&W attorneys are usually family members, so hopefully they do know something about them.
There is also the issue of life sustaining treatment and the donor can choose to allow the attorney to make decisions or not. If they donor chooses that the attorney cannot make decisions, then whilst there might and should be consultation with those closest to the donor by the health care professionals looking after the donor, the final decision maker about life sustaining treatment is the health care professionals. If the family disagree with that decision their only recourse is an application to the Court of Protection, which can be expensive, time consuming and very emotive for family members.
If the donor allows the attorney to make decisions about life sustaining treatment, then their decision is binding on the health care professionals, in the same way that the capacitated donor’s decision would be.
So apart from life sustaining treatment, what other decisions can the attorney make? In short – any medical or social care decisions, which would include decisions about treatment, including medication and surgery. Social care decisions such as what to wear, what to eat and who visits you. Importantly where to live, which includes whether someone goes into care and if so, which care home they go into.
They attorney can request a particular kind of treatment, but it will only be offered if it is clinically appropriate, this is the same as if the donor was capacitated. The attorney cannot demand the treatment. The attorney can refuse clinically appropriate treatment, in the same way that the capacitated donor could, which includes things like discharging from hospital against medical advice. However, the place that the attorney is taking the donor needs to be in that person’s best interests and if the health care professionals believe that the attorney’s decision is too risky, then instigate an application to the Court of Protection to have the attorney removed.
People take risks, people make unwise decisions, this is normal and happens all the time and people with a cognitive impairment should also be able to do, as far as possible, what everyone else can do. The issue becomes the balance between the unwise choice of the attorney honouring the preferences of the donor and the risk that this will incur.
Acting for someone when they are unwell is always hard emotionally on those that must make those decisions and care for them. And making decisions about life sustaining treatment is particularly hard. For any attorney who needs help, please contact me, I would be happy to support you in this role.