Ordinary powers of attorney

Today an ‘ordinary power of attorney’ (OPA), which is governed in England and Wales by the Powers of Attorney Act 1971, remains a commonly used document, allowing donors to nominate an attorney to deal with financial matters on their behalf – this can be general and cover every aspect of their affairs or can specify which matters the attorney can handle. This arrangement can be ended at any time by the donor and the document automatically becomes invalid if the donor loses mental capacity. An OPA might be considered when someone is going abroad for a period of time, going into hospital or is physically unable to manage their finances owing to illness or disability.

Enduring powers of attorney

An OPA is automatically revoked by the mental incapacity of the donor and so the Enduring Powers of Attorney Act 1985 was introduced to enable an attorney to continue to deal with the donor’s financial affairs after they became mentally incapacitated, subject to registering the enduring power of attorney (EPA) with the Court of Protection. This Act was repealed by the Mental Capacity Act 2005 with effect from 1 October 2007, but EPAs created before this remain valid, subject to being registered with the Office of the Public Guardian.

Lasting powers of attorney

In replacing the Enduring Powers of Attorney Act 1985, the Mental Capacity Act introduced the lasting power of attorney. An LPA is a legal document that enables a person who has capacity and is over 18 (the donor) to choose another person or people (the attorney(s)) to make decisions on their behalf. There are two types of LPA: a property and financial affairs LPA and a health and welfare LPA.

The property and financial affairs LPA is similar to an EPA, although it must be registered with the Office of the Public Guardian before it can be used. In Engand and Wales, the health and welfare LPA allows donors to nominate an attorney to make decisions about their personal health and welfare once they become incapacitated for the first time. Only adults aged 18 or over can make an LPA. There are separate LPA forms for health and welfare, and property and financial affairs. The forms comprise three sections: Part A should be filled in by the donor; Part B by the certificate provider; and Part C by the attorney(s). A certificate provider must be chosen by the donor and can be either someone who has known the donor personally for at least 2 years or, if the donor has borderline capacity, a professional who is qualified to make the judgements required to be able to sign the certificate. Patients may ask a doctor to be the certificate provider and it is prudent to get any such requests in writing from either the solicitor involved or the donor (if the donor is completing and submitting the LPA forms without involving a solicitor). The Mental Capacity Act sets out a number of requirements that the donor, attorney(s) and certificate provider must satisfy before a valid LPA is created (Box 1).

In response to criticisms of the two original forms, a statutory instrument came into force on 1 October 2009 (Sectretary of State 2009), which introduced two new prescribed LPA forms (the original LPA forms could still be used until 1 April 2011). The changes included: the renaming of personal welfare LPAs as health and welfare LPAs; a reduction in length of both documents from 25 pages to 11 pages for property and financial affairs and 12 for health and welfare; a new colour-coordinated design; clearer instructions within the document; a reduction in the number of tick boxes; and, most importantly, a reduction in registration fee from £150 to £120 for each LPA, with potential exemption or remission if the donor’s gross annual income was £16 500 or under (the situation since changed again: the registration fee is currently £130 and there is a new fee remission of £65 for gross income up to £12 000; partial remissions have been abolished). However, because an LPA is more complicated than an EPA many people use a solicitor to create it, which carries substantial additional expense: it can cost £400–500 to register an LPA (such costs may, of course, be so prohibitive as to ostracise a large group for whom the LPA is particularly useful – older people).

Assessment of capacity to revoke a registered EPA

In the case of Re Cloutt (2008), the 87-year-old donor revoked a registered EPA, replacing it a few days later with an LPA. A solicitor and consultant psychiatrist witnessed both the deed of revocation for the EPA and the relevant parts of the LPA. The LPA attorney applied to court for an order confirming the revocation of the EPA (as required by the Mental Capacity Act 2005). The court, in upholding the central tenet of the Act (that assessment of capacity is decision-specific), required separate evidence from the solicitor and the psychiatrist relating to both the capacity of the donor to revoke the EPA and the capacity to create the LPA, which the donor did indeed satisfy (the capacity to create an LPA is not the same as capacity to revoke an EPA).

The certificate provider discussing the LPA with the donor in the presence of the attorney

The Office of the Public Guardian guidance is that a certificate provider at first instance should discuss the contents of an LPA with the donor while not in the presence of the chosen attorney(s) ‘if at all possible’ to form an opinion and ensuring that the donor can communicate freely (it does, however, say that there may be ‘exceptional circumstances’ when this may not be possible). The 2005 Act empowers the Public Guardian to reject an application to register an LPA on the grounds that there is either a defect in completing the form or where there has been a procedural defect in the execution and completion of the form(s).

In the case of Re Gibbs (2008), the 86-year-old donor, who had a diagnosis of dementia, made out two LPAs. The donor’s general practitioner (GP) incorrectly completed Part B of both forms (inappropriately ticking boxes to say that he had discussed the LPA with the donor alone but also that the attorneys had been present). The GP needed to confirm in writing that he had indeed interviewed the donor alone and in the presence of the attorneys to correct this error, as the Public Guardian refused to register the LPA (causing a delay of 6 months). A similar mistake occurred in the case of Re Bullock (2009) where the certificate provider did not tick the box to confirm that they had discussed the LPA with the donor and that the attorney was not present. Whereas the Public Guardian refused registration on the grounds that the LPA document was incorrectly completed, the Court, in exercising its discretion under the 2005 Act, declared that the form, with this minor aberration, should be treated as if it had been made out appropriately and the LPA was subsequently registered.

Capacity to make an LPA

In the case of Re Collis (2010), there was a dispute as to whether the donor had the requisite capacity when making a property and financial affairs LPA. The judge analysed opposing views from a solicitor and doctor involved and ruled that it was more than likely that Mr Collis was incapable of managing his property and affairs in a ‘general sense’, but this did not automatically mean that he was incapable of executing an LPA. In doing so, he reinforced that mental capacity was both issue- and time-specific. He explained that mental capacity being issue-specific meant ‘that the capacity required to create an LPA is not the same as the capacity to manage one’s property and financial affairs generally, or the capacity to make a will or a gift or a loan, or the capacity to decide on a certain course of medical treatment, or the capacity to decide whether to live in a residential care home’. On capacity being time-specific, he said that this focused on the ‘particular time when a decision is made or has to be made’ and ‘[t]he fact that, after just a few minutes, or on the following day, a person cannot recall having made a particular decision doesn’t automatically mean that he or she lacked the capacity to make that decision, or that the decision is invalid’. The judge preferred the evidence from the solicitor, which was both issue- and time-specific, and held the donor did have the requisite capacity and hence had made a valid LPA. (The judgment in Collis and the Mental Capacity Act Code of Practice demonstrate the differences between an LPA and an EPA – Table 1.)

TABLE 1 Differences between an LPA and an EPA

Clarity needed when devising restrictions and provisions

The following cases provide guidance when setting out restrictions and provisions in LPA documents. In the case of Re Azancot (2009), the donor of a health and welfare LPA inserted a restriction that her attorneys could only act in the event that she was ‘physically or mentally incapacitated and there is written medical evidence to that effect’. The words ‘physically or’ were removed by the Public Guardian because under s. 11(7) of the Mental Capacity Act a health and welfare attorney can only make decisions if the donor lacks mental capacity and not physical capacity. In the case of Re Thrussell (2010), the court removed a provision whereby the donor directed her attorneys to consult with X ‘in respect of any major decision’ because this was ‘so uncertain as to be unworkable’.

Defective execution of LPAs

As noted above, the defective execution of an LPA may affect its registration by the Public Guardian. In the case of Re Murdoch (2009), there were several mistakes in completing the document. The court upheld the Public Guardian’s refusal to register the document because the multiple errors in its execution were ‘too fundamental’. However, courts do have discretion under the Mental Capacity Act 2005 to declare an LPA that has not been submitted in the appropriate form to be treated as if it were, if it is satisfied that the person executing the document intended to create an LPA. This discretion was applied in the cases of Re M Crook (2010) and Re Helmsley (2009), whereby documents with minor defects were treated as if they had been appropriately completed.

Differing decisions regarding healthcare

Some clinicians have reservations regarding the introduction of LPAs that cover healthcare in the UK. In a survey of geriatricians, only 47% supported the idea of such an LPA and, although it was thought to encourage advance discussion on end-of-life care, there was little evidence that the decisions made by a patient and their proxy concurred (Reference Schiff, Sacares and SnookSchiff 2006). A study by Reference Seckler, Meier and MulvihillSeckler and colleagues (1991) found that even close relatives were not good at making judgements on behalf of others. This suggests that, as a practical means of extending the wishes of an incapacitated patient, health and welfare LPAs may not result in the treatment that the patient would have wanted. For example, the study found that few patients had discussed their resuscitation preferences with either a family member (16%) or their physician (7%) and this cast doubt on the usefulness of a strict substituted judgement standard as an approach to medical decision-making for patients with diminished mental capacity. (There is also wider concern regarding the public’s overall lack of awareness of available options for advance healthcare decision-making (Reference SamantaSamanta 2009).) The use of additional statements clarifying the intent of the donor has been advocated to improve the acceptance by doctors of an attorney’s decision to decline life-prolonging treatment for that person (Reference Corke and MannCorke 2009).

Assessing loss of capacity

The issue of capacity is obviously core to the implementation of an LPA. A review by Reference JonesJones (2005) suggests that although the Mental Capacity Act stresses that LPAs can only make decisions that the donors are incapable of making themselves, there is a clear potential for their misuse in terms of being inaccurately perceived as an ‘all-or-nothing’ phenomenon. Jones further suggests that loss of capacity in one area could lead to the view that an LPA was now ‘active’, giving the attorney wide-ranging powers over finance, health and welfare. Despite the improved LPA forms and guidance, many attorneys will have limited knowledge of the Mental Capacity Act and the Code of Practice and may have difficulty knowing exactly when the donor loses capacity. After an LPA has been registered, there is no further legal requirement to have the donor’s capacity assessed before acting on their behalf and as such an attorney may act too soon or too late.

Determining best interests

The introduction of the health and welfare LPA represents some advancement in being able to promote self-determined prospective choice. An LPA could offer a more flexible solution than an advance directive, which is constrained by requirements of applicability and validity (Reference SamantaSamanta 2009). However, a criticism of attorney powers is that the decision-making standard is essentially objective and that such powers do not extend to a substituted judgement approach (Reference SamantaSamanta 2009). Another potential issue would be to what extent a healthcare team is satisfied that the attorney is acting in the donor’s best interests in circumstances where the proxy decision does not align with medical wisdom (conversely, a potential weakness is the failure of the Mental Capacity Act 2005 to define sanctions for non-compliance by attorneys). Similarly, there may be issues where the donor’s priority of choices is unknown or cannot be ascertained, when in such circumstances it would seem appropriate to invoke best interests as the basis for decision-making (Reference SamantaSamanta 2009).

Reference SamantaSamanta (2009), in an in-depth review of LPAs for healthcare, considers it ‘somewhat incongruous’ that the 2005 Act has chosen to impose the best-interests benchmark for attorney decision-making (a ‘subjectively modified’ best-interests standard), as this is the weakest standard for respecting previous self-determined choice. Samanta also astutely point out the paradox of a person appointing a healthcare attorney but not informing that attorney of their wishes regarding treatment preferences in the event of subsequent incapacity.

Disagreements

Where there are disagreements arising between a doctor and an attorney as to what is in the best interests of the patient that cannot be resolved through discussion at first instance (which may revolve around Mental Capacity Act aspects with which the attorney may be unfamiliar), the Court of Protection should be consulted and requested to arbitrate. While a decision is awaited, the 2005 Act allows for the continuation of life-sustaining treatment or treatment to prevent serious deterioration of a condition, even if this conflicts with the decision of the attorney. Healthcare professionals should be mindful that in the same way as a competent adult has the right to refuse treatment, a valid documented refusal of treatment as part of an LPA should, in principle, give the attorney the power to enforce that refusal. Failure of the professional to respect that refusal may amount to assault and battery. There may also be occasions where the attorney and the donor disagree on a decision. In this situation, a clinician may be requested to confirm that the donor does or does not lack capacity to make a specific decision.

Some consider that the LPA offers little more than a ‘taster’ for prospective self-determination and that the new statute, in the form of the Mental Capacity Act, is unlikely to bring ‘major change’ (Reference SamantaSamanta 2009). Nevertheless, it will be interesting to see how the use of LPAs, especially that of the novel health and welfare LPA, evolves in everyday practice.