Lasting Power of Attorney for Health and Welfare – Alzheimer’s Society podcast March 2016


Hannah: Planning for the future is even more
important after a diagnosis of dementia, having Lasting Power of Attorney for Health and Welfare
allows the Attorney to make decisions on your behalf if there comes a time when you are
unable to make these decisions for yourself. Hello I’m Hannah and in this edition of
the podcast I speak to helpline advisor Vicky about Lasting Power of Attorney for Health
and Welfare. She’ll also be giving her thoughts on the ‘Your answers’ section of Living
with Dementia magazine from February/March 2016.
Hannah: What is a Lasting Power of Attorney for Health and Welfare?
Vicky: A Lasting Power of Attorney, which is shortened to LPA – is a legal document
that allows an individual to choose a person they trust to make decisions for them if there
was a time in the future when they cannot and there are 2 types of LPA, one for health
and welfare decisions and the other for decisions about the person’s property and finances.
Hannah: Who can make an LPA? Vicky: To make an LPA you must be over the
age of 18, have the capacity to make this decision and so this means that you are deciding
for yourself that you wish to make an LPA, and you understand what it means. When making
an LPA you are referred to as the ‘donor’. Hannah: What happens when someone has set
up an EPA or Enduring power of attorney already? Vicky: LPAs are part of the Mental Capacity
Act 2005, and only came into force in October 2007. Before this people created EPAs, these
only covered managing a person’s finances and property. All EPAs made before October
2007 are still valid and can still be registered. LPAs are only valid in England and Wales,
there is a different system in Northern Ireland and these are called the Enduring Power of
Attorney. Hannah: What is the difference between an
LPA for health and welfare and LPA for personal welfare?
Vicky: The LPA for health and welfare is also referred to as LPA for personal welfare; the
two are exactly the same. The reason for this confusion is because the Mental Capacity Act
(MCA) and the MCA Code of Practice both refer to this type of LPA as personal welfare. Whereas
the OPG LPA form calls it LPA for health and welfare. It’s important to note that whatever
people refer to them as they are the same thing.
Hannah: What is the role of the attorney? Vicky: An attorney is the person appointed
by an individual who is making an LPA – (the donor) – to make specific decisions for them
regarding their health and welfare. The attorney can make decisions relating to the person’s
care and treatment and this covers a wide range of decisions, when making the decisions
the attorney is acting as though they are the person and so is able to make the decisions
the donor themselves would have made. Hannah: Who can be an attorney?
Vicky: You can choose anyone to be your attorney, as long as they are over 18. This is different
for LPA property and financial affairs the attorney cannot previously have been declared
bankrupt, that’s the difference for that one. It is essential to think carefully about
who you may appoint. The role of the attorney involves a great deal of responsibility and
power so it’s important to choose a person you can trust. Think carefully about who you
believe would be able to carry out the role and make decisions in your best interests
is reliable and has the skills to carry out the role. Most people will choose a relative
or close friend, but you can ask a professional such as an accountant or solicitor. It is
worth considering that a professional may charge for their time, and you need to name
an individual rather than an organisation or company. The person who agrees to be the
attorney must also sign the LPA form. When making decisions, your attorney must follow
the Mental Capacity Act. This means that they: Must act in your best interests, must consider
your past and present wishes and cannot take advantage of you to benefit themselves. You
can choose to have more than one attorney whereby you must decide how your attorneys
will act. They can make decisions together, they can act together and separately, or a
combination of the two. You can also appoint a replacement attorney. This is the person
you would like to make decisions for you if your first choice attorney is no longer able
or willing to be your attorney. If the attorney fails to comply, the LPA must be cancelled.
If an attorney has taken advantage of you, this will be investigated by the OPG and the
person could be prosecuted. Having an LPA in place can therefore offer you protection
from potential future abuse. Hannah: What happens when someone doesn’t
have a person who can be their attorney for health and welfare?
Vicky: If there is no one who is able to speak on your behalf, such as a family member or
a friend, an Independent Mental Capacity Advocate (IMCA) must be provided to protect your rights.
An IMCA cannot make decisions on your behalf instead it is their role to represent your
thoughts and feelings when important decisions are made. An IMCA will be notified from the
NHS or local council for example doctors, social workers and care home staff. An IMCA
must be involved when decisions relate to life sustaining medical treatment or decisions
about where a person will live and there is no one else such as family or friends that
can do this. An IMCA may be consulted about a care review or adult protection procedures.
Hannah: What decisions does the LPA for health and welfare cover?
Vicky: An LPA for Health and Welfare allows a person, who is the donor, to choose a person,
called the attorney, to make decisions relating to their care and treatment if they were ever
unable to in the future; this can cover a whole range of things. To use a LPA for Health
and Welfare it must be registered, and an attorney can only use their power if the person
lacks capacity to make the specific decision. The MCA Code of Practice states that an attorney
may make decisions about: Consenting to, or refusing medical assessments or treatment
on the donor’s behalf, arrangements needed for the donor to be given medical, dental
or optical treatment, assessments for and provision of community care services, where
the donor should live and who they should live with, deciding the donor’s day-to-day
care, including diet and dress and deciding on the person’s leisure activities, that
is say what they do in their spare time, accessing personal information such as medical records
and care plans. A attorney must be consulted when a care plan is being devised for the
donor, and they should agree to it. When a care plan is drawn up for a person that lacks
capacity to consent to their care plan, an attorney for health and welfare must be consulted.
Hannah: Does an LPA for health and welfare cover decisions about life sustaining treatment?
Vicky: An LPA for health and welfare only covers decisions about life sustaining treatment
if the person chooses this option when they created it; it is a specific question on the
form. Hannah: What are the benefits of making an
LPA for health and welfare? Vicky: It can be reassuring to know that,
if you are unable to make a decision for yourself in the future, the person you have chosen
to be your attorney will be able to make them for you. Making an LPA can help you to talk
with others about your future wishes. Making an LPA ensures that the person you want to
make decisions for you will be able to do so. This prevents a stranger, or someone you
may not trust, from having this power. It can be more expensive and take more time for
family and friends to try and gain a similar power in the future.
Hannah: When a person lacks capacity can someone make an LPA for health and welfare?
Vicky: If there comes a time when you can’t make a particular decision, and you haven’t
created a LPA, the Court of Protection may need to become involved. Although rare, it
can be possible to become a deputy for health and welfare this can give someone similar
powers to that of an attorney. This is because often when there is an issue it is usually
about one decision, for example, a decision about where someone will live. The Court will
decide to make the one-off decision rather than giving someone the continuing power to
manage the person’s health and well-being. If someone were to apply to become a deputy
the applicant must clearly show why a continuing power is needed and why the person who lacks
capacity needs a deputy for their health and welfare. A relative or friend can apply to
be your Deputy, or a professional may be appointed. The process of becoming a Deputy is a lot
more time-consuming and expensive than an LPA. If someone is considering this they may
wish to speak with the Court of Protection about whether they should apply or not. Usually
decisions about care and treatment can be made without a legal power, and this will
be under the duties of the Mental Capacity Act, in particular that all decisions should
be made in the persons best interests. Hannah: If someone were to complete the forms
now, does it mean that they will no longer be able to make decisions for themselves?
Vicky: No, this is because the purpose of the form is so that if you were unable to
make decisions in the future, your attorney can make these decisions for you. If you make
a health and welfare LPA, your attorney cannot make decisions unless there comes a point
where you cannot make these decisions yourself. This is different for the property and affairs
LPA, as for these types of decisions you can decide that you want your attorney to act
while you still have capacity, you would both have the power to act and make decisions. Hannah: What is the difference between an
LPA for health and welfare and an advance decision?
Vicky: If someone has an LPA for health and welfare and an advance decision to refuse
treatment there are set rules for which one is valid. Someone may have both an advance
decision and a LPA for health and welfare and so it is important that the right one
is used and takes precedence. An advance decision only covers the refusal of treatment related
to end of life care, and so this issue of which is valid only comes up where the LPA
for health and welfare includes the ability of the attorney to make decisions about life
sustaining treatment. In these cases it will depend upon whether there is any guidance
on the documents and/or which was made last. Hannah: What happens when someone is sectioned
under the Mental Health Act and they have an LPA for health and welfare?
Vicky: If someone is detained in hospital under the Mental Health Act, the MHA it’s
shortened to, the MHA takes precedence. This means that an attorney for health and welfare
cannot consent or refuse treatment for a mental health disorder if the person is detained
under the Mental Health Act. Hannah: How would someone set up an LPA form
for health and welfare? Do you need a solicitor? Vicky: Many people find that they are able
to complete the form without legal help. It is necessary to ensure that the form is checked
through thoroughly as it is a legal document; a mistake in the form may mean that the LPA
will need to be resubmitted again and will incur another administration fee. The fee
currently for registering Lasting Powers of Attorney for Health and Welfare is £110,
but there are exceptions for people on certain benefits or a low income. However an LPA is
a powerful legal document and you may wish to get advice from a legal adviser with experience
of preparing them; again costs are to be involved. It can be helpful to look at the forms first
and read the guidance notes to decide whether you need legal advice.
Hannah: Where can you access the LPA forms? Vicky: It is possible to access them online
on the GOV.UK website and this includes guidance and prompts as you complete the form. If you
would prefer you can download paper copies from GOV.UK website or have them posted to
you from the Office of the Public Guardian who can also send free guidance booklets.
On average it takes up to 12 weeks to register an LPA with the Office of the Public Guardian.
Hannah: What happens once you have completed the form?
Vicky: Once you have completed the form, you will need to get someone to sign it to state
that you have the mental capacity to make an LPA. This means you have the ability to
make this decision; you understand what an LPA is and you made the decision yourself.
The signed form is a ‘certificate of capacity’ and the person is called the certificate provider.
They can be: A professional, such as your doctor, social worker or a solicitor or they
can be someone who has known you for two years, but is independent that isn’t a family member
or an attorney and they will not benefit from the LPA, there is more information about this
in the guidance notes. You also need to sign the form in front of a witness, and each attorney
must sign the form to say that they agree to act as your attorney if needed in the future.
They will also sign to show that they understand the duties this involves. In addition, you
are given the option to list one or more ‘people to notify’. This is someone who you want to
be alerted if there is an application to register the LPA. This could be almost anyone, for
example a friend or relative. The purpose of this is to provide you with an additional
safeguard. It is only an option, so you can choose not to name someone, but many people
like the protection it can offer, and the reassurance of knowing that people will be
kept informed of what is happening. Hannah: How would someone know if there is
an LPA in place? Vicky: In some situations someone may wish
to check that someone is an attorney if they claim they are so. So it is possible to search
the government registers to see whether someone has got an attorney acting for them. You would
need to apply to search the Public Guardian register, complete a form and send and send
this to the OPG. The information required to carry out the search would be the person
making the application name and address. They would also need to provide the ‘donor’s
details’ that is again the person with dementia, their full name, date of birth and address.
An alternative address can also be provided, and this can be helpful if the person moved
since they have made an LPA. Hannah: What organisations are useful when
making an LPA for health and welfare? Vicky: You can go to The Citizens Advice Bureau;
they are often the best starting place for advice, also through the Office of the Public
Guardian, the Court of Protection, Solicitors for the Elderly, Age UK or you could ring
the National Dementia Helpline or contact us on the email or the Live Online Advice
service. Hannah: In the February/March 2016 edition
of ‘Living with Dementia magazine’ the magazine of Alzheimer’s Society, the your
answers section asked the question ‘What to do if a person with dementia walks out
of shops without paying for goods’. In this section Talking Point members share their
advice on what to do if a person with dementia walks out of shops without paying for goods.
Aisha Rebecca said ‘One suggestion could be to let the shop staff have a contact number
for yourself or someone close by, who could be the first port of call. If they make a
note of what the person is taking then you can go up to the shop later and pay for the
goods. If they are unaware then you’d have to take things back or pay for all the things
you later find at home. Or have a week’s “tab” set up that they can take it off of when they
walk out without paying. Basically it is all about awareness. Make them aware of the person’s
condition and I have found that people are often understanding.
Vicky: This is a good suggestion as it helps the person with dementia keep to a familiar
routine. If they were to be stopped from going to the shops it may lead to the loss of self-esteem;
confidence and independence. Talking with the staff about the person’s dementia will
help them have a better understanding on how someone with dementia may behave. Giving the
manager a photo and or a contact number can help with this continuity of understanding.
The person with dementia could carry around a ‘Help card which we have at the Alzheimer’s
Society on which you can put down personal information and contact details of someone
who can help them they could also carry round an identity bracelet as well. Arranging a
tab for the person with dementia can work well with a local shop that you have established
a good relationship with. Some supermarkets may have a pre-paid card /store card to use
worth seeing. Absolutely awareness is the key. Encouraging others can help a community
become more dementia friendly. Hannah: Fellow traveller said, ‘When my
husband, who has early-onset Alzheimer’s, was still able to do the family weekly shop
at Morrisons by himself, he started to come home with things without paying for them.
He’d load up the conveyor belt and chat away happily to the cashier. Then take goods back
off and put them in the bags in his trolley before they had gone through the till. My
main worry was the stress it would cause him if the security guards accused him of shoplifting,
so we decided to try talking to Morrisons about it. I made an appointment with the manager.
We went along together and met him. He was brilliant. He introduced my husband to his
team of supervisors and explained that he had memory problems and may need a bit of
help. It made us feel quite secure about my husband continuing to shop there – in fact
it was the last place he still went shopping independently.’
Vicky: This sounds like a very supportive experience for the PWD and those close to
them. It’s important to help maintain a sense of normality for as long as possible
Hannah: Jeanie 73 said ‘I have found myself heading for the exit of a shop without paying!
Thankfully I was with my daughter who called me back. It was not as if I was hiding things,
as they were in my disability buggy basket and festooned on the handlebars. None the
less, I would have been mortified if I had actually left without paying. These days I
rarely go out without my daughter to the shops.’ Vicky: What can be so upsetting and distressing
for the person with dementia is the fact that they are doing things very unusual to them;
having someone there to support them can feel reassuring as well as keeping that independence.
Hannah: See the full discussion thread on this topic on Talking Point. Thank you for
listening to the Alzheimer’s Society podcast.

Daniel Yohans

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