Limits of Enduring Powers of Attorney

[MartinWL]

This really is a detailed point of law that I have drawn a blank on so far.

An Enduring POA, ( pre October 2007) doesn't cover health and welfare, only finance and property. The OPG guidance clearly states that an "Enduring" attorney cannot decide where the donor should live.

However if the donor has plenty of funds in savings, and is to pay for care, this is a financial decision as well. Care homes are costly.

I wonder if anyone has any experience of resolving conflicts between health decisions and financial decisions or knows of any decided cases in the law reports that determine the boundaries of an EPA power?

Let me suggest a hypothetical example. My mother sees her dentist. The dentist decides to take out her tooth in her best interests for which he will charge £100. A filling would be £50. As her attorney I can't decide the health issue and must accept what the dentist says. However as her "Enduring" attorney I control her money. I tell the dentist I won't agree to pay £100 and will only pay £50. I consider that to be in her best interests as, unlike the dentist I take finance into account. Who prevails?

There must be many other opportunities for conflict between EPOA holders and others, about carers, homes, etc where best interests have to be paid for and the attorney only considers the person's best financial interests or disagrees as to what best interests are.

 

[Jaded'n'faded]

My brother and I had EPA for my mother but it wasn't registered. She was undiagnosed and mostly fine at home then she had a fall and hospital stay. This really advanced the (still undiagnosed) dementia greatly and I decided - in my wisdom - that she should move from hospital to a CH near me. The hospital discharge team had been making noises about her returning home with carers but mum wouldn't co operate with their assessments so they were dithering. At the time, I didn't know what any of the rules and procedures were so I just took matters into my own hands really!

I got the home near me to assess mum, even though she was miles away, and it all happened as planned. Once the discharge people knew I'd arranged a CH, I didn't see them for dust. I really don't recall anyone asking me if I had PoA and as you say, the old EPA doesn't cover H & W anyway. But I didn't know any of this!

Once in the CH, mum needed a DoLS to prevent her escaping. At that point a social worker became involved and questioned my decision, saying mum could manage in sheltered accom or similar. I disagreed so an advocate was appointed. The SW agreed to a temporary DoLS for 6 months pending mum getting a diagnosis. At the time, mum was doing an excellent hostess mode though didn't have a clue where she'd lived previously. The DoLS was made permanent 6 months later after she was diagnosed but by then it was pretty obvious to all that she needed 24/7 care.

Again, although I argued with the SW over where mum should live, she didn't question my right to do so. My brother had registered the EPA in the meantime but I can't honestly say I had to produce it for the SW or remind anyone I had it.

The only occasion I can recall is when mum broke her hip at the CH. I went with her to hospital in the ambulance and came up against a trainee paramedic I fell out with. He told me that HE would be making all decisions about mum's treatment. I'd just told him that mum had a Living Will (the old version of the Advance Directive) and did not want resus. etc, should it come to that. He did not care about the LW or that I had PoA (of any sort - he didn't have a clue about such things) but I had a copy of mum's Living Will in my bag so I got it out and waved it in hs face. (I know, I know, but I was in an ambulance in the middle of the night and a spotty teenager was telling me what was best for my mum!) I told him it was a legal document and if he went against it I would see him in court. Awful behaviour really and I am ashamed.

Anyway, once at hospital, I made sure the doc took my copy of the LW and put it on her records. At a later date I made sure that the care home and GP also had copies. I had a long talk about DNR/further hospital visits with her GP and it was agreed she wouldn't go again unless absolutely necessary. The care home was designated her preferred place for end of life. Again, I wasn't asked for any sort of PoA for any of this. Perhaps it helped that mum had taken care of this by setting up the Living Will.

 

[Banjomansmate]

I already had EPA in place and have now arranged LPA for H & W so hopefully my children shouldn’t have too much trouble if anything is needed in future years.

 

[Phil2020]

In re: your hypothetical dentist. I don't think the dentist 'decide to take her tooth out in her best interests' rather that he/she gives professional medical advice that having the tooth extracted is the correct course of medical treatment & in her best interests. Presumably, the decision (extraction or filling) remains with mum because, as you say, "an Enduring POA, ( pre October 2007) doesn't cover health and welfare" but if mum is not able to make that decision I think that you are obliged to follow the medical advice, and that the payment of £100 is proper.

If she chooses not to follow the dentist's advice, the dentist may or may not agree a filling is sufficient, or he/she may say go elsewhere for the procedure you want.

Similarly, if, as you say, "the OPG guidance clearly states that an "Enduring" attorney cannot decide where the donor should live", then who is deciding? In the first instance, it would appear that the decision remains with the donor. If that's the case the attorney seems to have largely an advisory role which, of course, would highlight such things as just how quickly funds may run out, the merits of other 'cheaper' care homes, other calls on the funds and so on. If the donor stuck to his/her guns and was fixed on an expensive care home then, to my mind, the attorney is obliged to spend the donor's money to secure their wishes.

Such conflicts are frequently resolved by the abundant use of the 'reasonableness test' i.e. what, in all the given circumstances, is reasonable to the man on the Clapham omnibus? I think professional advice (from GPs, dentists, social workers, care workers, physios. and so on) as regards the donor's situation should always be followed: that would help protect an attorney against accusations of negligence or failing to act in the donor's interests. I'd suggest this (seeking & following professional advice) is particularly beneficial if the donor cannot make a competent decision himself/herself as to living arrangements.

Best too to keep a written record of how any decisions are reached: who was spoken to, when, details of what was said. You can never have too many written records!

 

[Phil2020]

I have NO IDEA why my comment appears with 'struck through' ... !! I hope it's readable all the same.

 

[Cazcaz]

Similarly, if, as you say, "the OPG guidance clearly states that an "Enduring" attorney cannot decide where the donor should live", then who is deciding?

There are different types of PoA. An ENDURING PoA does not give the attorney(s) the right to decide where a person lives. For that you would need a Health & Welfare PoA, which DOES give the attorney(s) the right to decide.

 

[Kapow]

I have POA,H&W and F&P.....but the SW informed me that if she assesses my husband and decides he has capacity,then the decision of where he stays rests with her...if she decides he hasn't capacity then I,as Attorney for H&W,can make the decision.So...I contacted my solicitor who informed that was correct! I then wanted to know what was the point of POA if it can be overidden,my thoughts were it's a legal document?Sorry no,she says,it can be overidden by SW or Dr's....so I contacted the Office of the Public Guardian,who issue the POA's...they informed meno,it CANNOT be overuled,it is a legal and binding document....check with the OPG...

 

[Cazcaz]

I have POA,H&W and F&P.....but the SW informed me that if she assesses my husband and decides he has capacity,then the decision of where he stays rests with her...if she decides he hasn't capacity then I,as Attorney for H&W,can make the decision.So...I contacted my solicitor who informed that was correct! I then wanted to know what was the point of POA if it can be overidden,my thoughts were it's a legal document?Sorry no,she says,it can be overidden by SW or Dr's....so I contacted the Office of the Public Guardian,who issue the POA's...they informed meno,it CANNOT be overuled,it is a legal and binding document....check with the OPG...

In terms of where a person lives, If the PWD has capacity, they are listened to. If they do not have capacity then the attorney(s) with the H&W PoA is/are listened to. SWs & DRs can advise but can’t overrule a H&W Attorney (not without maybe a court ruling). That is how understand it to be. But if the attorney only has an EPA or a financial LPA, then the SWs and DRs have control.

 

[MartinWL]

@Phil2020 I accept your argument where the donor has capacity to make decisions but you can only register an EPA with the Office of the Public Guardian once the donor has lost capacity. If the donor has lost capacity then the dentist has to make a best interests decision after consulting relevant others including the enduring attorney. The crunch comes if the attorney says " I control her money, I am not paying, I don't think it is in her best interests taking account of wider considerations than dentistry" What then?

 

[Cazcaz]

@Phil2020 I accept your argument where the donor has capacity to make decisions but you can only register an EPA with the Office of the Public Guardian once the donor has lost capacity. If the donor has lost capacity then the dentist has to make a best interests decision after consulting relevant others including the enduring attorney. The crunch comes if the attorney says " I control her money, I am not paying, I don't think it is in her best interests taking account of wider considerations than dentistry" What then?

1 the PoA can be registered as soon as someone BEGINS to show SIGNS of losing capacity. They can still be judged as having capacity.

2 the attorney would need to be careful about refusing treatment in case they are judged not to have acted in the PWD’s best interests.

3 if the attorney does not have a H&W PoA then the medical professional would be within their rights to take things further, report the attorney in question.

 

[MartinWL]

1 the PoA can be registered as soon as someone BEGINS to show SIGNS of losing capacity. They can still be judged as having capacity.

2 the attorney would need to be careful about refusing treatment in case they are judged not to have acted in the PWD’s best interests.

3 if the attorney does not have a H&W PoA then the medical professional would be within their rights to take things further, report the attorney in question.

Yes that's right but the attorney may take the view that the treatment is worse than the disease, or maybe the attorney knows what the person's past wishes were, or maybe there are legitimate financial considerations. A dentist, or a social worker, might not be in the best position to judge best interests.

 

[nitram]

I have NO IDEA why my comment appears with 'struck through' ... !! I hope it's readable all the same.

Although similar event in >>>post#6<<<

 

[Phil2020]

@nitram ... lol! It is quite possible that I've inadvertently 'struck through' just because sometimes I press these 'buttons' to see what happens. But on this occasion, I don't think I did - I put it down to the mysteries of technology !!

@MartinWL ... you comment ... "If the donor has lost capacity then the dentist has to make a best interests decision after consulting relevant others including the enduring attorney. The crunch comes if the attorney says " I control her money, I am not paying, I don't think it is in her best interests taking account of wider considerations than dentistry" What then?"

It seems to me that a qualified dentist will ONLY be interested in proffering the most appropriate dental treatment for mum: he/she will not, as far as I can see be interested in 'consulting relevant others' as to a course of dental treatment unless those 'relevant others' have dental/ medical expertise at least equal to his/her own.

I don't disagree about your 'crunch point'. The attorney could refuse to pay for an extraction but, for me, the consequences for a donor of an attorney's refusal, are the attorney's burden, not the dentist's. A dentist cannot be compelled to provide treatment which he/she thinks is not in the best interests of his/her patient: I think that might come under the heading 'medical negligence' should things go awry for the donor.

The scenario of an attorney refusing to pay for treatment, deemed by the dentist to be in the donor's best interests, is, to me, relatively straightforward.

• The dentist may be persuaded by an attorney to carry out a different, cheaper, course of treatment that is, in the dentist's professional medical opinion, appropriate; or,
• the dentist might say, 'in my professional medical opinion extraction is the proper course of treatment & it's the only course of treatment I'm prepared to give'.

Either way, it's the dentist who will have to be satisfied as to where his/her patient's 'best interests' lay. To act otherwise may well put his/her professional status at risk.

At the second bullet point, if the attorney didn't want to pay, I'd anticipate that he or she would be advised to seek the desired medical treatment elsewhere. But that - and any consequences for the donor - are, in my view, down to the attorney alone.

 

[Lone Wolf]

My humble opinion is that the law is only important in certain situations, otherwise common sense should always prevail. At least, in the court of public opinion, if you always act in your PWD's best interests (from an ordinary person's viewpoint), then you will be commended and considered guilty of nothing.

In the specific example, I would say that the financial decision can only be made after judging the health decision - once that is adjudged then the financial 'best interest' decision can be made - is the price acceptable for the best health decision option.

 

[MartinWL]

@nitram ... lol! It is quite possible that I've inadvertently 'struck through' just because sometimes I press these 'buttons' to see what happens. But on this occasion, I don't think I did - I put it down to the mysteries of technology !!

@MartinWL ... you comment ... "If the donor has lost capacity then the dentist has to make a best interests decision after consulting relevant others including the enduring attorney. The crunch comes if the attorney says " I control her money, I am not paying, I don't think it is in her best interests taking account of wider considerations than dentistry" What then?"

It seems to me that a qualified dentist will ONLY be interested in proffering the most appropriate dental treatment for mum: he/she will not, as far as I can see be interested in 'consulting relevant others' as to a course of dental treatment unless those 'relevant others' have dental/ medical expertise at least equal to his/her own.

Yes I agree and agree with your two bullet points as well. You are right that the dentist will only consider the dentistry. But the attorney may look at a bigger picture than dentistry and might consider other factors.

Maybe we are stretching the dentist example here, a bigger issue would be care home residence. For dentist read social worker. Maybe the attorney wants to keep the person at home. The point of principle is what happens when there is a clash between finance and health.

 

[MartinWL]

My humble opinion is that the law is only important in certain situations, otherwise common sense should always prevail. At least, in the court of public opinion, if you always act in your PWD's best interests (from an ordinary person's viewpoint), then you will be commended and considered guilty of nothing.

In the specific example, I would say that the financial decision can only be made after judging the health decision - once that is adjudged then the financial 'best interest' decision can be made - is the price acceptable for the best health decision option.

Common sense can never prevail over law. That's the essence of a system of law. You can't break the law because you think it is common sense.

By the way I think it is common sense that I should be absolved from paying taxes for life!!!

 

[Phil2020]

@MartinWL @Lone Wolf ... yes, ok, the dentistry example is well & truly stretched! But I think there's much in it to read across to both the attorney wanting to keep the donor at home; and 'clash between finance and health'. Maybe 'clash' isn't the best word (suggests to me there has to be a 'winner' with the donor stuck in the middle). Personally, I'd describe it as a tension between finance issues and health issues.

From what I've read there are a few limited situations where a donor can be 'compelled' to go into a care home against his/her wishes, or the attorney's wishes. Detention under the Mental Health Act 1986 is one; where it's judged that a donor's 'needs' are not being met in their current location (and I recall there's something specific about rental properties) is another : Social Services make that judgement (a needs assessment). If an attorney can provide for, or arrange to provide for, the 'needs' of the donor to be met 'at home', it's unlikely that Social Services would choose to intervene. I think it's worth remembering that meeting a donor's needs 'at home' in accordance with a 'needs assessment' can be as expensive as some care home fees.

In your first post you say 'the OPG guidance clearly states that an "Enduring" attorney cannot decide where the donor should live'. I had a look at the guidance and it says 'the attorney has no legal right to decide where the donor lives'.

Having spent several years writing government policy in an unconnected field, I think that word 'legal' in the guidance is quite important.

I don't know if relevant legislation says there's no 'legal right' but as this is guidance, it suggests that the position is not beyond question: it's a different matter if relevant legislation states there's no 'right' for a donor to decide, it then would be beyond question. An attorney who was challenging the authority of any other party trying to force a donor into a care home would want a clear explanation from that party as to where its legal authority lay in relevant legislation i.e. Act of Law, Part number & section number. For completeness the attorney would also want written confirmation from the other party that it would meet all of the relevant care home costs; such confirmation may or may be obtained but forewarned is forearmed.

Thinking laterally, having specifically drafted the term 'legal right' in the guidance, in my view it enables (and here @Lone Wolf's comment is relevant) an attorney to claim a different right - a 'moral' right - to decide where a donor lives. Of course, sound moral grounds e.g. common sense, are needed. Such grounds may include that the donor decided years previously that he/she wanted that particular person as attorney because he/she was, for example, of good character, trustworthy, reliable, honest etc. ; or there might be letters or other written records between donor and attorney - before they assumed those roles - indicating that choice, the attorney may be (legally) next of kin; a term might be drafted into the EPA saying that the attorney could decide where the donor lived (such a term couldn't be relied on but it would be indicative of the thought process), and so on. Unless the legal right is set down in legislation, the 'legal right' claim in the guidance is, in my view, challengeable by a 'moral right' claim from the attorney.

My understanding is that a donor cannot be forced into a care home without good grounds, largely related to mental health issues, or having their needs properly met. If a donor is forced into a care home it's not entirely clear to me who is then (assumed) responsible for fees (much conflicting information around e.g. it would seem logical if someone is made to go into a care home consequent upon the Mental Health act, the state bears the costs, but I've seen nothing definitive). I suspect - from a common sense perspective and just the manner in which 'care' works in the UK at the moment - that there would be a reasonable expectation for the donor to meet some, if not all, of the cost - assuming relevant personal funds exist.

If there is disagreement between 'local authority/professionals', who have forced a donor into a care home, and the attorney, about the payment of care home fees, nothing I've seen prevents a local authority from seeking a court order for payment of care home fees from the donor's personal funds against the attorney's wishes. Any such hearing would hear both sides of the argument.

 

[Lone Wolf]

Common sense can never prevail over law. That's the essence of a system of law. You can't break the law because you think it is common sense.

By the way I think it is common sense that I should be absolved from paying taxes for life!!!

What if in applying commonsense one unwittingly and unknowingly breaks the law? Is it an essential element of a system of law that one must have full knowledge of any laws that might be relevant to decisions they might make?

 

[Cazcaz]

What if in applying commonsense one unwittingly and unknowingly breaks the law? Is it an essential element of a system of law that one must have full knowledge of any laws that might be relevant to decisions they might make?

No. “Ignorance is no defence in the eyes of the law”

If you break a law, you break a law. Even if you didn’t know that law existed.

 

[Phil2020]

@Lone Wolf @Cazcaz ... strictly speaking @Cazcaz is spot on. It would seem to allow prosecutors to prosecute in just about any situation, where any law has been broken, without further justification.

That said, if, as @Lone Wolf suggests someone 'unwittingly and/or unknowingly breaks a law' prosecutors are very likely to apply a 'common sense' approach. That is, they'll consider matters such as the general public interest in mounting a prosecution; any mitigating factors around the breach of law, and the actual consequence of a breach of law.

@Lone Wolf says 'Is it an essential element of a system of law that one must have full knowledge of any laws that might be relevant to decisions they might make?'

Personally, I wouldn't say that that's the case. All decisions, to my mind, should fall in the realms of being legal (to the best of one's knowledge and belief) and reasonable in all circumstances. My guess is that everyone will have gaps of varying degree in their relevant legal knowledge.

People are generally expected to apply their full expertise to a situation and prosecutors may pursue some breaches of law more keenly depending on just who broke the law. For example, a qualified solicitor may be considered more culpable, and treated more harshly, by prosecutors if he/she broke any laws in his/her field of expertise, than say, a seventy year old former school crossings guard who broke the same law in precisely the same way.