06 April 2020 - Article
1. What is a LPA?
An LPA provides an individual with the opportunity to appoint one or more attorney(s) to make decisions for them concerning healthcare and personal welfare matters at a time when they can no longer decide for themselves. These decisions would not encompass financial matters (which are covered by an Lasting Power of Attorney (Property and Financial Affairs)) (‘LPA) but covers one or both of two broad areas: personal welfare and healthcare matters. The LPA only operates when an individual is no longer capable of making this kind of decision for themself. This is in contrast with an LPA which can come into effect before mental capacity is lost.
Decisions made under the LPA could include, for example:
- where an individual should live and who they should live with;
- day-to-day care, including diet and dress;
- who an individual may have contact with;
- participation in social activities, leisure activities, education or training;
- personal correspondence and papers;
- rights of access to personal information;
- consent to or refusal of medical examination or treatment on an individual's behalf; and
- arrangements needed for an individual to be given medical, dental or optical treatment.
This list of personal welfare and healthcare decisions is not exhaustive and the donor should appreciate from the above that an LPA could be a very powerful document because of the wide range of decisions that can be made on behalf of another person. It should be emphasised that it is important to make an informed decision about the scope of the power granted by the LPA, especially in the context of the identity and authority of the attorney(s). With this in mind and given the size of the document the donor's attention should be drawn to the following:
2. Form of the LPA
Only the prescribed form may be used. The first pages of the LPA include prescribed information and guidance which it is compulsory for the donor, the attorney(s) and the certificate provider (see 11 below) to read and understand. The LPA itself is divided into three parts: Part A to be completed by the donor, Part B to be completed by the certificate provider (confirming the donor's capacity to make the document), and Part C to be completed by the attorney(s). All three parts of the document must be completed and the document registered with the Office of the Public Guardian (see 12 below) before the document is valid.
3. When the LPA comes into effect
An LPA will only come into effect once the donor has lost their mental capacity. Whilst the donor retains capacity to make decisions about healthcare and personal welfare for themself, they should continue to do so, even if these decisions are unwise.
4. Assessing capacity
It is the responsibility of the attorney(s) to act together with the donor to assess capacity to make any particular decision. Only when an individual lacks the capacity to make decisions do the attorney(s) have the power to make decisions in the donor's place. Assessment of capacity would be carried out by the attorneys. The difficulty of the decision to be made is one of the most important factors – the harder the decision, the higher the level of capacity needed to make it. It is therefore very important for there to be a relationship of trust and confidence between the attorney(s) and the donor so that they would be aware of decisions in respect of which they believed the donor did not have the capacity to act.
5. Choice of attorneys
Choosing an attorney(s) is absolutely key to the LPA. Donors may wish to appoint their spouses or children as attorney(s). The donor can appoint more than one attorney. Attorneys could be appointed jointly (i.e. they would all have to take all decisions), jointly and severally (i.e. each could individually take some decisions without the active involvement of the other although they should generally work together in decision making) or jointly in relation to some decisions and jointly and severally in relation to others.
Given the breadth of decisions in which the attorneys may be involved, it is likely that difference combinations of attorneys will be required for different decisions, and it will probably be less likely that attorneys will be appointed otherwise than “jointly” in relation to what might be key decisions in relation to the donor's health. Great care will be needed when considering these matters.
6. Restrictions and guidance
Under an LPA it is possible to include instructions as to what attorneys can or cannot do which will be binding on them. These should be considered carefully; it is important to allow attorneys freedom to make decisions whilst ensuring they have sensible boundaries to what they do. In addition, it is possible to give attorneys non-binding guidance on other matters, for example, who the attorneys should consult (or even not consult) before making a particular type of decision.
These sections of the LPA should be tailored to the specific circumstances of the donor and may require input from medical and/or other specialist practitioners. Since there is no particular guidance as to the type/extent of restrictions and guidance that may be included, these matters are likely to require a good deal of consideration.
7. Replacement attorney
It is possible to appoint a replacement attorney who would be able to take over if one of the attorneys decided to step down (which they could do) or themselves died or became incapable of acting as attorney. A replacement can be appointed to replace a specified attorney or the first attorney who became unwilling or unable to act.
8. Best interests
Once the LPA has come into effect and attorney(s) are making decisions under it, they are bound by both the provisions of the LPA and the following;
8.1 THE PROVISIONS OF THE MENTAL CAPACITY ACT 2005 ('MCA') AND 'BEST INTERESTS'
The general provisions of the MCA, including its basic principles, are set out on the first pages of the LPA. These include the assumption of capacity, the taking of practical steps to help the donor make a decision, the confirmation of the ability of a donor to make an unwise decision, the fact that all decisions must be made in the donor's best interests, and whether the decision can be made in another way which is less restrictive of their rights and freedom of action applied to decisions made by the attorneys. In assessing whether a decision is in an individual's best interests, the attorney(s) need to consider a checklist of factors including the donor's own wishes concerning the matter and those of other relevant parties.
8.2 THE CODE OF PRACTICE
The Code of Practice under the MCA is a document to which the attorneys are legally bound to have regard. We would ensure that the attorney(s) had a full copy of the Code of Practice in due course.
9. Life-sustaining treatment
Under an LPA, the donor has to make a specific decision as to whether his attorney(s) should have the power to consent to or refuse life-sustaining treatment. Life-sustaining treatment is not defined in the MCA as treatment necessary to save life, assessed on a case by case basis. By way of example, although the taking or refusal of insulin might not be life-sustaining treatment for a non-diabetic, it would be for a diabetic.
10. Named persons
Section 9 of the LPA provides that the donor can select up to 5 persons to be notified when the LPA is registered (see 12 below). These individuals should have a close relationship with the donor. Should a donor decide not to choose to name anyone to be notified, he would need to have two certificate providers under Part B rather than one provider. Named persons can object to the LPA on a number of grounds when they are notified of the application to register by the Public Guardian.
11. Certificate provider (Part B)
As soon as the first part of the LPA is completed, the certificate to confirm the donor's understanding of the LPA needs to be completed. There is a prescribed list of excluded persons who cannot provide the certification and two groups of those who can.
Once the certificate provider has executed the LPA, the attorney(s) sign in the presence of a witness, certifying that they understand the document and their duties.
The LPA cannot be used until it has been registered with the Public Guardian, a process which currently takes a minimum of 12 weeks. The document is then verified on every page by the Office of the Public Guardian and returned. Attorneys cannot act under the LPA until such time as the donor has lost their capacity as defined in the MCA (4. above). There is a registration fee of £120.
14. Is an LPA suitable for me?
The terms of an LPA are likely to differ according to each donor's particular circumstances and the possible complexity of building into the document the necessary guidance and restrictions. Given the complexity of the documents (and the cost and timescale for completing the form and the registration process), we would generally suggest LPAs for older clients or those with specific illnesses. Preparing an LPA costs in excess of £1,000 + VAT, in addition to registration fees.
15. Living wills (advance decision to refuse medical treatment)
Whilst an LPA is a very broad document granting the attorney(s) power to make a series of decisions relating to social/welfare as well as medical aspects of the donor's life, a living will is a more specifically medical document intended to outline treatments the donor does not wish to be applied to them. It is usually drafted with the assistance of a medical practitioner who has knowledge of the person making the living will, for example their GP. A living will does not appoint anyone to make decisions for him, but sets out the wishes of the patient.
A living will usually operates in a very specific way: (1) the operative provisions of the living will enable you to request that certain treatments are not to be applied to you – but this is restricted because some treatments cannot actually be denied under medical practice rules, furthermore, (2) the operative provisions come into effect only when certain “triggering conditions” linked to a decline in your health (which you have decided are relevant) are in evidence, (3) the decision as to when the triggers are met, so that the living will comes into effect and the treatments are not applied, is made by persons you have selected, and (4) it is not possible under a living will to request any particular type of treatment.
For example if your health is actually very good – you are not aware of any specific medical conditions of which you will fall foul and which might involve treatments which could significantly reduce the quality of your life either during treatment or afterwards – the treatments to be refused in the living will can only really be framed in quite generic terms. Similarly, it may be appropriate for the triggering conditions be framed in very broad terms. This should also have the effect of bringing the living will into operation sooner rather than later on a decline in your health.
Neither an LPA nor a living will can prevent the donor's doctors being required to give the donor ‘basic care' including warmth, shelter, pain relief, management of distressing symptoms, hygiene, feeding and hydration.
It is important to note that if the donor executes a living will and then subsequently executes and registers an LPA which gives the attorneys powers in relation to the treatment in question, the LPA will override the terms of the living will unless its terms are expressly included in the LPA.
Putting a living will in place is less complex than an LPA. It does not need to be registered and costs between £1,000 and £1,500 + VAT to produce. In particular, the shorter timescale means that a living will can be put in place at shorter notice if and when a donor becomes aware of a particular medical problem. Many clients consider making both documents and this should be discussed.
16. Next Steps
This note goes into some detail given the complicated nature of LPAs and the donor may have a number of further questions. Julia Abrey is an expert on LPAs and living wills and is based in our London office, contactable at 0207 597 6053.