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What rights does an attorney have under a Lasting Power of Attorney for Health and Welfare?

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A Lasting Power of Attorney for Health and Welfare (LPA) gives a person (known as the attorney) the legal authority to make decisions on behalf of a loved one if they can’t make decisions for themselves.

Making treatment and care decisions on someone else’s behalf

Generally, an attorney can make decisions about anything to do with the donor’s (the person who made the LPA) health and personal welfare. This includes decisions about medical treatment, where the donor is cared for and the type of care they’ll receive, as well as day-to-day things like their diet, how they dress and their daily routine.

But, when it comes to giving consent or refusing life-sustaining treatment, the attorney must have been given permission to make these decisions when the LPA was made. There might also be instructions in the LPA form that the attorney must follow.

The decisions an attorney makes must also be in the best interests of the person they’re representing. This means that they should consider:

  • whether the person has capacity to make the decision for themselves, and if they don’t, whether they’re likely to regain capacity to make treatment and care decisions in future
  • any wishes the person has previously expressed about their treatment or care and any relevant values or beliefs the person has

If you’re acting as an attorney, the doctor in charge of your loved one’s care should also explain their treatment options to you, including the risks and benefits of each option.

When might a doctor choose not to follow an attorney’s decisions?

There are a few reasons why a doctor may not follow an attorney’s decisions:

  • They may believe that the attorney isn’t acting in the person’s best interests.
  • The attorney may not have been given the authority to make a particular decision.
  • Sometimes a donor’s Advance Decision may override an LPA.

If your loved one made an Advance Decision (Living Will) after you were appointed as their attorney, you can’t override the decisions made in their Advance Decision. However, if a decision needs to be made about something that they haven’t detailed in their Advance Decision, then you’ll still be able to act on their behalf.

If the doctor doesn’t follow an attorney’s decisions

If the doctor in charge of your loved one’s care doesn’t follow your decisions as an attorney, ask for a meeting with them. At this meeting you should explain your decision and discuss their reasons for disagreeing.

If you and the doctor still disagree about which treatment is in your loved one’s best interests, you can ask for a second opinion or involve an advocate.

If this doesn’t work you can make a formal complaint to the hospital or care provider about the doctor. You can also speak to a solicitor.

If you’re still unable to settle the disagreement you can apply to the Court of Protection to make a decision. There are emergency procedures so that urgent cases can be dealt with quickly.


More information

Contact Compassion in Dying on 0800 999 2434 if you and your loved one are in this situation. We may be able to help by putting you in touch with a legal expert.