In this series of articles, medical students from across the country will discuss a range of topics from medical ethics to the NHS to public health to medical conditions to clinical governance.
The person handing over the decision-making process is known as the donor, whereas those gaining it become the attorney. This is not to say that the attorney has to be one singular person, as the power of attorney can be assigned to more than one person, allowing decisions to be made ‘jointly’ or ‘jointly and severally’. By having a system where decisions are made by two or more people it arguably gives the donor more control when assigning roles, depending on who they trust to carry out certain tasks for them. There are two different types of power of attorney – those that focus on health care decisions, which are called Personal Welfare Lasting Power of Attorneys (LPAs) and those that focus on financial and asset decisions, named Property and Financial Affairs LPAs. LPAs came into force in 2007, before which EPAs (Enduring Power of Attorney) were made. An EPA did not encapsulate the realm of personal welfare and healthcare issues, unlike the Personal Welfare LPAs which do.
The Property and Financial LPA allows the elected attorney to make decisions regarding the donor’s money, assets and property. This role can be held in readiness until it is deemed necessary to make certain transactions or can come into effect immediately once the LPA has been awarded. The decisions can span from paying the donors’ bills or collecting their pension in their place, to selling their property.
A Personal Welfare LPA gives the elected attorney the power to make decisions relating to the donor’s daily routine. This can include; washing, dressing and eating, as well medical care, placing someone in a care home and choices over life sustaining medical treatment. Unlike the Property and Financial LPA, a Personal Welfare LPA can only be used if the donor has become unable to make decisions about their own care, no longer having the capacity to do so. There are some exceptions to what the Personal Welfare LPA allows an attorney to do in the place of a donor. These include refusing medical treatment prescribed by a clinician, if the donor has been sectioned or is on leave from the hospital or making decisions about life sustaining treatment, without consulting whether the donor has made an advance decision about this type of care. This arguably offers a level of protection to the donor after they have made the decision to award a Lasting Power of Attorney. In addition to this, as long as the donor is of capacity, they also have the right to cancel the Lasting Power of Attorney at any point. This stands even if it has been registered with the government, as long as the cancellation is made official and done through the right channels.
Of course, the Power of Attorney brings the issue of the donor’s autonomy into question once they have elected their Attorney, does this system essentially allow a patient to hand over their autonomy? This could be regarded both in terms of financial assets and their health. Conversely, there are also exceptions to what powers the Personal Welfare LPA awards the attorney in regard to the donor’s health and it can be revoked by the donor at any point if they wish to do so and have capacity. In addition to this, it also could be argued that it was within the patient’s rights (both in terms of them having autonomy about their own decisions and legally) to elect such a person to make these decisions.