FINANCE & LEGAL
WHY GETTING POWER OF ATTORNEY RIGHT MATTERS
Understanding and following the correct procedures for Power of Attorney is a fundamental aspect of providing lawful and person-centred care, says Francesca Snape, Associate, and Kennady Armitage, Paralegal at Markel Law.
Increasingly, issues arising around the misunderstanding or misuse of Powers of Attorney (PoA) and Lasting Power of Attorney (LPA) are arising in inquest proceedings, CQC investigations, and safeguarding enquiries. This article highlights the key risks associated with the misuse of PoA and LPA, aiming to help providers prevent unlawful care, reduce potential civil liabilities, and ensure compliance with legislative and regulatory requirements.
An LPA enables an individual to appoint someone they trust to make decisions about their health, welfare, or finances in their best interests should they lose mental capacity. For care organisations regulated by the CQC, understanding how PoA’s work (and ensuring they are recognised and used properly) is vital to safeguarding people’s rights, dignity, and safety.
DIFFERENT TYPES OF POA
There are several different types of PoA’s and Providers should be mindful of this when considering whether the PoA is valid, with reference to the type of decision being made. The LPA is the most commonly used legal document for providers to be aware of. The two LPA types are:
• Health and welfare – this allows an appointed attorney to make decisions about care, treatment, and daily wellbeing once the person can no longer make decisions for themselves.
• Property and financial affairs – this relates to decisions about money and property. It can sometimes be used even before a person loses capacity, depending on how it is draſted.
Understanding these distinctions is essential for recognising who is legally authorised to act on behalf of a person, ensuring decisions are made lawfully and in the person’s best interests.
WHEN IT’S NEEDED / WHERE IS THE LINE?
If there are concerns a person lacks capacity, providers must follow the legislative requirements under the Mental Capacity Act 2005 (MCA) to determine whether the person can make the relevant decision. For example, day-to-day choices like meals, clothing, activities, and personal care may not require an attorney’s involvement if the service user can understand and make those decisions.
For more significant decisions, such as medical treatment, hospital transfers, or life sustaining decisions, providers must first assess capacity if there are concerns. Only in circumstances where the individual is assessed as lacking capacity, and where an LPA has been evidenced as valid, should the attorney’s views be sought on behalf of the person. Clinical judgement is still needed to consider whether any course of action is in the service user’s best interest
28 Kennady Armitage Francesca Snape
and family views should still be sought even where there is no LPA in place. Any disagreement over this decision may need to be referred to the Court of Protection.
The situation becomes problematic where a family member states that an LPA exists but cannot provide proof. Providers must not permit them to act as an attorney until evidence is provided. The provider should request a copy of the registered LPA, check that it is the correct type (Health & Welfare and/or Property & Financial Affairs), ensure that it is properly registered with the Office of the Public Guardian, and verify that the individual they are dealing with is named as an attorney. If the LPA is not verified, the care provider must not treat that person as an attorney, but should still seek their views as a person concerned with the individual’s welfare.
Providers must carefully balance their legal and regulatory obligations with the need to involve others, such as family members and carers, when developing care plans and making important care decisions. Providers should have regard to:
• Section 4(7)(b) of the MCA, which imposes a duty on those making a best interest’s decision to consult with carers, or anyone interested in the welfare of the individual such as family members;
• The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (‘the 2014 Regulations’), specifically Regulation 9 (Person Centred Care) and Regulation 11 (Consent).
Family member’s views should always be considered in the decision-making process but should not be the sole basis for care decisions; the weight attached to their views will differ depending on whether they are offering views on behalf of the
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