Lasting Powers of Attorney – some practical issues
There are two types of Lasting Power of Attorney, one dealing with financial affairs and the other dealing with health and welfare decisions. In this blog, I’m going to give some practical examples of how the health and welfare one works.
One of the key features of the LPA for health and welfare is that it cannot be used unless the person has lost capacity to make their own decisions. And as capacity is time and decision specific, for each issue that arises, the carer will need to check on whether that person has capacity to make a decision. This does not necessarily need a formal assessment of capacity, no-one wants that each time a cup of tea is given! However it might mean asking the question about how much milk and/or sugar goes into the tea and assessing the answer.
Each day, we make thousands of health and welfare decisions, how much butter is on our toast and how big a gulp of tea we take in the morning, each one of those is a separate decision. And for most of those decisions, we might not be that bothered if the carer makes that decision. But we all have our personal preference on for example how hot our tea is, how much milk and sugar there is, so if the care communicates that, it is helpful to those providing care. And as long as someone is dressed it might not matter if their t-shirt is red or blue.
So if the carer is going to make lots of these decision, why create the LPA? Because it resolves the big issues and the issues where there is a dispute!
Lots of people say that they want to stay at home for as long as possible, but according to the House of Lords post legislative scrutiny of the Mental Capacity Act, Social Services are risk averse and healthcare professionals are paternalistic. And in either case, they are not necessarily empowering the individual to make their own decision, including the “unwise choice”, which is a principle of the Act!
So having an LPA in place will mean that the attorney can insist that the person is cared for in their own home or discharged from hospital. It will mean that the care that is provided to them is done in accordance to the attorney’s instructions, as long as it’s possible to provide that care. This is not an entitlement to something that is not clinically appropriate.
If you have any questions about LPAs, please contact me.