Mrs Smith’s son John makes a complaint that his Mum is ‘always in bed’ when he visits in the afternoon. He says that as he is his Mum’s attorney, you should follow his instructions and keep her up. Sound familiar?
It’s perhaps not surprising that many care providers, when confronted by a relative like John feel unsure about what decisions an attorney can make.
Powers of attorney made the headlines last year when a senior Judge remarked that he wouldn’t make one himself because of the potential for attorneys to exploit their power. An increase in the number of investigations into attorneys seems to back up his concerns.
There are now more powers of attorney registered than ever before – almost 2.5 million according to the latest figures from the Office of the Public Guardian. Care providers increasingly work alongside attorneys and it seems that it’s not the power itself that is the problem, but rather an understanding about how to apply the law that governs them. Many attorneys say they didn’t realise the work involved and welcome advice and reassurance about how to act so it is important that providers are also confident in how the law works.
Who decides?
Before any of us make a decision on behalf of someone who lacks mental capacity we need to start from a fundamental principle set out in the Mental Capacity Act (2005) and assume the individual can make the decision themselves.
John may be insisting that Mrs Smith is up when he visits, but whilst she has capacity to decide she wants to stay in bed that is her choice.
What if Mrs Smith’s capacity is variable or declining?
John may think it is easier for everyone if he simply takes over, but this is in direct conflict with the law which states that he should be taking steps to support and enable his Mum to make decisions for herself.
What if Mrs Smith does lack mental capacity to decide?
Disagreements about whether someone lacks capacity are a whole other article, but assuming everyone agrees that Mrs Smith does lack capacity then it’s over to John for all decisions, right?
Well no.
Being an attorney does not give someone free reign when making decisions.
If John is only appointed as attorney for property and finance, he has no legal authority to make decisions about care, but he must be consulted by the person making the decision. If he is attorney for health and care then he can make decisions and give consent, on behalf of Mrs Smith. The decisions he makes though, like ANY decision made on behalf of someone who lacks capacity, must be in his Mum’s best interests.
Should Mrs Smith be out of bed each afternoon? John needs to have a discussion with the care provider to understand why they return her to bed each afternoon so that he can work out if it is in his Mum’s best interests. In this case the provider was following specialist advice to promote wound healing. Once John knew this he agreed that it was undoubtedly in his Mum’s best interests for the arrangement to continue whilst the wound healed.
But what if John had still insisted on his Mum staying up each afternoon? If the care provider believed that this was not in Mrs Smith’s best interests they would need to give clear reasons why in order to hold firm with the decision, seeking further advice if the disagreement became entrenched. If there was no clear justification the arrangement needs reviewing and John’s involvement is vital.
About the author:
Louise Courtney is a Solicitor with Moore & Tibbits. She advises care providers, individuals and families in respect of capacity issues, paying for care and best interest disputes.
